District Court Allows Binational Couple Seeking Spousal Visa to Challenge DOMA Section 3

U.S. District Judge Harry D. Leinenweber (N.D. Ill.) ruled on January 5, 2012, in Revelis v. Napolitano, 2012 WL 28765, that an action by a married same-sex couple seeking a declaration that Section 3 of the Defense of Marriage Act is unconstitutional in the context of their application for a spousal visa meets the requirements for Article III jurisdiction, even though their application has not yet been denied by the United States Citizenship & Immigration Service (USCIS), a unit of the Homeland Security Department. Judge Leinenweber also granted an application by the Bipartisan Legal Advisory Group of the House of Representatives to intervene as a defendant in the case, inasmuch as the named defendants, pursuant to last year’s determination by the Department of Justice, will not defend the constitutionality of Section 3.

The plaintiffs are Demos Revelis and Marcel Maas, Chicago residents. Revelis is a U.S. citizen. Maas is a native and citizen of the Netherlands. Maas entered the U.S. through the Visa Waiver Program in 1999. He and Revelis began dating and began living together in 2002, and were married in Iowa in 2010. They want to live together permanently in the U.S., so Revelis filed a visa petition, I-130 Petition for Alien Relative, on behalf of Maas. If the petition is approved by USCIS, Maas could apply for lawful permanent residency in the U.S., and eventually for citizenship. However, USCIS is bound by Section 3 of DOMA to reject the petition, under the Justice Department’s current policy that DOMA will continue to be enforced by the executive branch until it is either repealed by Congress or finally declared unconstitutional by the courts. Understanding that USCIS will be bound to reject their application, Revelis and Maas brought suit seeking the court’s order that USCIS evaluate their application as a lawfully married couple on the same basis of any different-sex married couple that would file an I-130 Petition.

Usually, a couple whose I-130 is denied would appeal through the administrative process within the federal bureaucracy, only getting to a point where their constitutional arguments could be considered once they appeal a final administrative determination to the federal courts. But Revelis and Maas, considering the futility of their I-130 petition under current policy, brought suit instead, represented by Chicago attorneys Erin Christine Cobb, Heather M. Benno, and Justin Russell Burton of the firm Kriezelman Burton & Associates.

While conceding the unconstitutionality of Section 3, the U.S. Attorney’s Office nonetheless filed a motion to dismiss, arguing that plaintiffs lack standing because their I-130 hasn’t yet been denied and thus they have not yet suffered any tangible harm and their case does not present a justiciable controversy for the court; on the same grounds, they also argue that the dispute is not yet ripe for judicial resolution. Rejecting these arguments, Judge Leinenweber cut through to the reality of the situation. “Given the current state of the law,” he wrote, “it seems clear that DOMA precludes the granting of Revelis’ spousal visa petition for Maas. While it is true that the petition could be denied for a variety of reasons having nothing to do with DOMA, that could happen to any couple. While perhaps inartfully pleaded, the injury that Plaintiffs allege is broader than the expected denial of the petition. They content that because of DOMA, they will not be treated like any other couple. There is a thumb on the scale against them, and even if they are otherwise qualified, it is a practical certainty that Revelis’ petition will be denied. This is a government-imposed barrier to obtaining a benefit available to other legally married couples, and it confers standing upon Plaintiffs.” The court found that defendants’ argument to the contrary “misapprehends the nature of the injury,” which is not, at this stage, a denial of the petition, but rather the right to have the petition considered on equal grounds with similar petitions presented by different-sex binational married couples.
As to ripeness, the court similarly rejected the government’s argument, finding that “the record is adequate to decide the issues presented here.” Since plaintiffs are not requesting an order granting them the visa, but rather an order precluding USCIS from giving effect to Section 3 of DOMA in evaluating their petition, the court found that they had presented “a legal question that is fit for judicial review.”

Plaintiffs had opposed BLAG’s motion to intervene, but the court found that the motion was “as of right” under the circumstances, since otherwise there would be no party in the case to defend the constitutionality of Section 3. “Because of the magnitude of the interest at stake here,” he wrote, “and because no other party in this litigation will represent the interests of BLAG, the Court finds that intervention as of right is appropriate.” The court directed BLAG to file its answer to the complaint, or otherwise plead, within 30 days of the court’s order. This case thus joins pending DOMA challenges in the First Circuit Court of Appeals and district courts in Connecticut, New York, and California, but may be the first to proceed past a motion to dismiss in the immigration context.

Comments

[serns]

Why'd the US Attorney's office file the motion to dismiss, any idea? It doesn't seem like the Obama Administration wants to fight it, so why delay?

[Art Leonard]

The Obama Administration's position is that they continue to enforce DOMA. Their dismissal motion was not on the merits. It was based on arguments of standing and ripeness. The defense trial attorney's job is to get rid of the case any way they can.