Matter of Oleg B. ZELENIAK, Beneficiary of a visa petition filed by Serge V. Polajenko, Petitioner (agency decision, July 17, 2013)

Plain-English summary

The Board reviewed a petitioner's appeal from the denial of a visa petition filed for his same-sex spouse. The petitioner and beneficiary were both men, and the Director had determined that their marriage was valid under Vermont law. After the Supreme Court held that section 3 of the Defense of Marriage Act was unconstitutional, the Board held that section 3 no longer prevented recognition of a lawful same-sex marriage or spouse under the Immigration and Nationality Act when the marriage is valid where celebrated. The Board sustained the appeal and remanded the record for the Director to determine whether the marriage was bona fide and to issue a new decision.

Decision snapshot

• Cited authorities: 8 U.S.C. § 1151(b)(2)(A)(i); 8 C.F.R. § 204.2(a); 1 U.S.C. § 7
• Outcome: The appeal was sustained and the record was remanded for a determination whether the marriage was bona fide.
• Key point: A lawful same-sex marriage valid under the law of the place where it was celebrated is not excluded from immigration recognition by section 3 of DOMA.

Full text (BIA official public release)

Cite as 26 I&N Dec. 158 (BIA 2013) Interim Decision #3787

Matter of Oleg B. ZELENIAK, Beneficiary of a visa petition
          filed by Serge V. Polajenko, Petitioner
                           Decided July 17, 2013
                      U.S. Department of Justice
               Executive Office for Immigration Review
                   Board of Immigration Appeals

Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.

FOR RESPONDENT: Bridget Cambria, Esquire, Philadelphia, Pennsylvania FOR THE DEPARTMENT OF HOMELAND SECURITY: Julie Hollowell, Associate Counsel BEFORE: Board Panel: NEAL, Chairman; ADKINS-BLANCH, Vice Chairman; MANN, Board Member. NEAL, Chairman:

The United States citizen petitioner filed a Petition for Alien Relative

(Form I-130) on behalf of the beneficiary as his spouse on March 10, 2010. The National Benefits Center Director denied the petition on July 27, 2010, and the petitioner appealed the denial to the Board. In an April 18, 2012, decision, we remanded the record to the Director with instructions to address two issues: whether the petitioner’s marriage is valid under State law and whether the marriage qualifies under the Immigration and Nationality Act. In a decision dated June 19, 2012, the Director considered the visa petition in light of our prior decision and once more denied the visa petition. The petitioner has now appealed the Director’s second denial. The petitioner’s appeal will be sustained, and the record will be remanded.
An alien spouse of a United States citizen may acquire lawful
permanent resident status in the United States. See section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2012). In order to determine whether a marriage is valid for immigration purposes, the United States citizen petitioner must establish that a legally valid marriage exists and that the beneficiary qualifies as a spouse under the Act, which includes the requirement that the marriage must be bona fide. 8 C.F.R. § 204.2(a) (2013).
In this case, both the petitioner and the beneficiary are male. In our
prior decision, we asked the Director to address, in the first instance,
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whether the petitioner and the beneficiary have a valid marriage under the laws of Vermont. See Matter of Lovo, 23 I&N Dec. 746, 748 (BIA 2005). We further asked the Director to address, again in the first instance, whether the marriage of the petitioner and the beneficiary would qualify the beneficiary to be considered a spouse under the Act absent the requirements of section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, 2419 (1996) (“DOMA”). That section set forth the meaning of the word “marriage” in 1 U.S.C. § 7 (Supp. II 1996) as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States, the word “marriage” means only a legal union between one man
and one woman as husband and wife, and the word “spouse” refers only to a
person of the opposite sex who is a husband or a wife.

On remand, the Director determined that the petitioner and beneficiary have a valid marriage under the laws of Vermont. However, the Director declined to consider the issue whether the beneficiary would be a spouse under the Act absent the requirements of section 3 of the DOMA, which was the controlling Federal statute. On June 26, 2013, while this appeal was pending, the United States Supreme Court ruled that section 3 of the DOMA is unconstitutional as a violation of the constitutional guarantees of equal protection and due process. See United States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013). As the Court explained:
The responsibility of the States for the regulation of domestic relations is an
important indicator of the substantial societal impact the State’s classifications
have in the daily lives and customs of its people. DOMA’s unusual deviation
from the usual tradition of recognizing and accepting state definitions of
marriage here operates to deprive same-sex couples of the benefits and
responsibilities that come with the federal recognition of their marriages.

Id. at 2693.
The Supreme Court’s ruling in Windsor has therefore removed section
3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C.
§§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
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We will therefore sustain the petitioner’s appeal. The issue of the

validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. See Matter of Lovo, 23 I&N Dec. at 748. The Director has already determined that the petitioner’s February 24, 2010, marriage is valid under the laws of Vermont, where the marriage was celebrated. See Vt. Stat. Ann. tit. 15, § 8 (West 2013) (effective Sept. 1, 2009). Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide. See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). We will remand the record to allow the Director to make that determination.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Director for
further consideration of the visa petition consistent with the foregoing opinion and for the entry of a new decision.

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