COMMENT: Until the Plenary Power Do Us Part: Judicial Scrutiny of the Defense of Marriage Act in Immigration After Flores-Villar

The Defense of Marriage Act (DOMA) effectively bars a U.S. citizen from sponsoring a foreign national same-sex spouse to immigrate to the United States. The plenary power doctrine-a standard of extraordinary deference to the political branches in immigration-may hinder judicial scrutiny of DOMA in the immigration context. In the past two decades, and most recently in Flores-Villar v. United States, the Supreme Court has failed to establish boundaries of judicial deference in immigration cases; however, dissents throughout the Court's plenary power case law illuminate possible limitations on the doctrine's scope.This Comment argues that courts should adopt a limited substantive framework that confines plenary power deference to four substantive areas of immigration law: (1) admission, (2) removal, (3) naturalization, and (4) immigration policy distinctions. When determining whether a case involves one of these four substantive areas, courts should apply Justice O'Connor's logically prior standard set out in her dissent in Nguyen v. INS. Employing this limited substantive framework and standard, DOMA is likely beyond the scope of plenary power deference. This Comment concludes that DOMA should thus be subject to traditional standards of constitutional scrutiny even in the immigration context.INTRODUCTIONDespite his fifteen-year relationship with a U.S. citizen,1 Paul Wilson Dorman was facing deportation in early 2011 after the Board of Immigration Appeals (BIA) affirmed the denial of his immigrant visa petition.2 Mr. Dorman, an Irish national who arrived in the United States in 1996,3 joined in a civil union with his U.S. citizen, same-sex partner in New Jersey in 2009.4 Mr. Dorman now seeks to immigrate to the United States based on this relationship5-an immigration benefit routinely extended to heterosexual couples.6 A formidable obstacle currently stands in his way: the Defense of Marriage Act7 (DOMA) precludes recognition of same-sex unions when interpreting any congressional act or administrative regulation.8 On April 26, 2011, however, Mr. Dorman's case showed a glimmer of hope when Attorney General Eric Holder vacated the BIA's decision ordering Mr. Dorman's deportation.9 Attorney General Holder remanded the case for the BIA to determine "whether and how the constitutionality of DOMA [was] presented" in Mr. Dorman's case, and whether Mr. Dorman's civil union could provide relief from deportation notwithstanding DOMA's federal definition of marriage.10Mr. Dorman's experience is emblematic of the obstacles facing same-sex partners seeking to immigrate to the United States based on relationships with U.S. citizens. With six states and the District of Columbia now issuing marriage licenses to same-sex couples, and five states recognizing same-sex civil unions,11 DOMA affects an estimated 35,000 U.S. citizens whose foreign national same-sex partners cannot use their relationship to remain in the United States.12 The executive branch, however, has recently indicated that it will no longer defend DOMA in the courtroom,13 and binational same-sex couples are seeing similar glimmers of hope in immigration cases across the country.14While Attorney General Holder's decision may signal a step towards recognizing same-sex marriages in the immigration context, the Obama administration has far from abandoned its duty to enforce DOMA.15 At the same time that Attorney General Holder proclaimed in a February 2011 letter to Congress that the executive branch will no longer defend DOMA in the courts, he confirmed the commitment to enforce DOMA at the administrative agency level,16 which includes agency adjudication of immigrant visa petitions. Until DOMA is repealed or a challenge to its application in immigration cases succeeds in court, it will continue to effectively bar same-sex partners from immigrating on the basis of relationships with U.S. citizens.17 With courts uncertain of how Congress's immigration and naturalization authority influences judicial scrutiny of DOMA in immigration cases, these cases are excluded from the dialogue on DOMA's constitutionality. …