The plaintiffs in this immigration suit are a binational male couple, legally married in California since October 2008. A month after their marriage, the American member of the couple filed an I-130, seeking permission for his husband, to immigrate to the U.S. It was denied by U.S. Citizenship and Immigration Services, and on appeal, by the Board of Immigration Appeals, both on the grounds that the federal Defense of Marriage Act precluded USCIS's recognition of the California marriage.

It is unclear from the public documents available, but there seem to have been removal proceedings pending at the same time. In any event, several strands of litigation ensued. The Mexican member of the couple filed several appeals from BIA actions in the Court of Appeals for the 9th Circuit, the first on August 28, 2008. These were consolidated as No. 08-73745. A stay of removal (that is, deportation) was in force. Next, plaintiffs filed this suit in U.S. District Court for the Central District of California on November 20, 2009, alleging that denial of the petition violated the anti-discrimination provision of the Immigration and Nationality Act ("INA"), and their Equal Protection Rights. The Court of Appeals consideration of the pending BIA appeal was stayed while the District Court considered this case. On April 30, 2010, the Court rejected the lawsuit, holding that it was foreclosed by prior 9th Circuit precedent (Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)). The plaintiffs appealed.

While the appeal was pending, on February 23, 2011, the Obama Administration formally took the position in a letter to Congress that DOMA is unconstitutional. The Attorney General explained that the Department of Justice would continue to enforce the law, but would not defend it in federal court.

The other BIA appeals involving this same couple were still pending in the 9th Circuit. (These were 9th Circuit Nos. 08-73745 and 09-71226). On August 9, 2011, the Court of Appeals granted the unopposed motion filed by petitioner in those cases (Torres-Barragan) to remand the two immigration petitions for further review by the Board of Immigration Appeals. On the same day, the Court stayed the appeal in this suit (9th Cir. No. 10-55768). On April 10, 2012, the plaintiffs voluntarily dismissed the appeal. This case appears to be concluded.

Nadji Allan - 10/23/2014


compress summary