News that the Justice Department is delaying cases involving married same-sex couples in anticipation of the repeal of Defense of Marriage Act -- coming just after the President's decision to stop deporting young illegal immigrants -- makes "stalling while awaiting some other branch of the federal government" seem like the hot immigration policy strategy of the week.
Unlike with Obama's shift on illegal immigrants, the Department of Justice hasn't officially announced a change of tactics in its enforcement policies with regard to gay couples, but Chris Geidner of the D.C-based Metro Weekly examined several cases in which Board of Immigration Appeals officials requested follow-up before deciding whether to grant visas or remove non-citizens. According to Lavi Soloway, an attorney arguing on behalf of the couples, the tactic shows the DOJ's assumption that "there may very well be, a year from now, a post-DOMA world." BIA officials appear to be following suit on Attorney General Eric Holder's decision last year to vacate a ruling against a man in a New Jersey civil union who faced removal.* From Geidner:
Holder, among other questions, had asked the BIA to resolve "whether [Dorman]'s same-sex partnership or civil union qualifies him to be considered a 'spouse' under New Jersey law" and "whether, absent the requirements of DOMA, respondent's same-sex partnership or civil union would qualify him to be considered a 'spouse' under the Immigration and Nationality Act."
As in, "is everything here in order except the fact that your marriage is invalidated by Section 3 of DOMA?" All four cases examined by Geidner ask similar questions, which looks like they are buying time for these couples by preparing their files for a day when they can settle cases in a DOMA-free world. This is the executive branch saying, "Hey Supreme Court, we could kind of use a permanent answer here."