I am sure most of you know, Dreamer and I have been dealing with Immigration laws in the United States for almost two years.
Dreamer lives in Australia and I live in the United States -- 2 years later and about 10k in travel -- We are still where we were. We can marry in NY, but I cannot sponsor Dreamer for a green card, because of the laws of DOMA.
Yesterday, a Trial Judge Rejects DOMA Challenge in Immigration Case, Citing '82 Appeals Court Ruling
http://www.metroweekly.com/poliglot/...oma-chall.html
Posted by Chris Geidner |
September 29, 2011 1:15 PM
Writing that he was bound by a 1982 appeals court decision whose reasoning the U.S. Department of Justice had argued was "no longer valid today," U.S. District Court Judge Stephen V. Wilson dismissed an immigration case challenging the Defense of Marriage Act brought by Indonesian citizen Hamdi Lui and his American husband, Michael Ernest Roberts.
The news, first reported by The Advocate's Andrew Harmon, means that the House Republican leadership, whose 3-2 control of the Bipartisan Legal Advisory Group has allowed it to intervene to defense DOMA in court challenges in recent months, secured its first court win in defense of the 1996 law.
The win, though, was a limited one -- as Wilson wrote that the previous appellate court decision controlled his decision and, thus, he could not consider the merits of Lui and Roberts's case arguing that Section 3 of DOMA, the federal definition of marriage, is unconstitutional.
Wilson, in discussing the claims raised by Lui and Roberts, wrote in an order issued on Sept. 28, "To the extent that Plaintiffs Challenge Section 3 of DOMA on equal protection grounds, that issue has been decided by [the 1982 case,] Adams [v. Howerton]."
As Metro Weekly reported on Sept. 6, DOJ -- which announced on Feb. 23 that it was stopping defending DOMA in court challenges -- faulted BLAG in a filing in the case for relying ''[t]hroughout their brief'' on Adams -- a case decided by the U.S. Court of Appeals for the Ninth Circuit, which includes the California federal court where Lui and Roberts's case is being heard. The appeals court held in the case that "Congress has determined that preferential status is not warranted for the spouses of homosexual marriages."
The DOJ lawyers argue, however, that ''[t]he reasons the Ninth Circuit Court of Appeals affirmed the denial of immigration benefits in Adams are no longer valid today,'' citing changed laws -- at the time of the opinion there was a statutory exclusion in the Immigration and Nationality Act for "homosexual aliens" -- as well as "intervening events and changing legal and social understandings."
Wilson, though, found that the 1982 decision constrains him -- as a trial court judge -- from being able to make a decision on the question raised by Lui and Roberts without deferring to the Adams decision from the appeals court.
"While Plaintiffs and Defendants point out the alleged deficiencies in the reasoning in Adams, this Court is not in a position to decline to follow Adams or critique its reasoning simply because Plaintiffs and Defendants believe that Adams is poorly reasoned," Wilson writes in the order. "The Court feels bound by Ninth Circuit precedent, and believes that those precedents are sufficiently clear."
The judge found that an en banc panel of the Ninth Circuit or a decision by the U.S. Supreme Court would be needed to overrule the Adams decision before an immigration-related DOMA challenge brought in the Ninth Circuit could succeed.
Read Wilson's order:
LuiVHolder-Order.pdf