The Board of Immigration Appeals denied Paul Dorman's application for cancellation of removal based on the Defense of Marriage Act.  Dorman asserted that his gay marriage to his partner, which was legally registered in New Jersey, allowed him to lawfully apply for this defense to deportation. Dorman and his partner appealed to the Third Circuit Court of Appeals where the case was pending when on April 26, 2011 Attorney General Eric Holder asked the Board of Immigration Appeals to reconsider its opinion.

Cancellation of removal is a defense to deportation that requires the applicant to show (1) ten years of residence in the United States, (2) good moral character, and (3) exceptional and extremely unusual hardship to a US citizen or permanent resident spouse, parent or child.  An applicant may only qualify using a spouse if the marriage is legally recognized and registered.  Visit our cancellation of removal page for more information about cancellation of removal.

Unfortunately, the Third Circuit Court of Appeals sealed Mr. Dorman's briefs and the letter and briefs filed by the Attorney General.  But the court's docket shows that on April 27, 2011, the Attorney General filed a motion to dismiss the case for lack of jurisdiction based on the previous day's order vacating the Board of Immigration Appeals' Order denying the case.  Read the Attorney General's one page order vacating the Board of Immigration Appeal's decision in Matter of Paul Wilson Dorman, and ordering the Board to consider the following four questions:

1. Whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law;
    
2. 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
    
3. What, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and
    
4. Whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

Cancellation of removal's most difficult aspect is proving exceptional and extremely unusual hardship.  The foreign national seeking cancellation must prove that the qualifying relative will suffer exceptional and extremely unusual hardship (1) if he must leave with the foreign national being deported, and (2) if he remains here without the foreign national who is being deported.

Because a spouse is an adult, one option available to him is to remain in the United States and sever the marriage.  Cancellation of removal's "extremely unusual" language has been interpreted by courts as meaning a hardship much different than the ordinary and common hardships caused by the deportation of a relative.

If a qualifying relative has health problems, a learning disability, physical disability, or other problems, this alone is insufficient.  The foreign national must show that the hardship will result from the deportation.  In this case, if Mr. Dorman's spouse is suffering from some illness or disability, for example, the foreign national must show that the illness or disability cannot be adequately treated in the country where the qualifying relative must travel.  In Mr. Dorman's case that country is Ireland.

The most interesting possibility is if Mr. Dorman's claim is that Ireland does not recognize same sex marriages and therefore the hardship is that as a gay couple, Mr. Dorman and his spouse will not be able to be married if he is deported.  This would arguably be an extremely unusual hardship because most married foreign nationals who are deported are in same sex marriages and so if deported, the couple's marriage will be recognized in the country foreign country.

Ireland passed the Civil Partnership and Certain Rights and Obligations of Cohabitants Act in 2010, which gives same sex couples rights and responsibilities similar to civil marriage, so this will be a difficult position to sustain.

Some types of gay sex between men was prohibited as "buggery" under the common law and was a serious crime in Ireland until 1993.  English and then Irish law forbade buggery since the Buggery Act of 1533 and courts defined buggery as (1) anal intercourse by a man with a man or a woman, or (2) vaginal intercourse by either a man or a woman with an animal.