The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
The Plaintiffs, Demos Revelis ("Revelis") and Marcel Maas ("Maas") (collectively, the "Plaintiffs"), are a same-sex couple who married in Iowa. They seek to challenge the constitutionality of Section 3 of the Defense of Marriage Act (the "DOMA"), 1 U.S.C. § 7. Defendants, Secretary of the Department of Homeland Security Janet Napolitano and Attorney General Eric Holder (collectively, the "Defendants") move to dismiss pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. Additionally, in the event the motion is denied, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the "BLAG") seeks leave to intervene to defend the constitutionality of the DOMA. For the reasons stated herein, Defendants' Motion to Dismiss is denied. BLAG's Motion to Intervene for a Limited Purpose is granted.
The following facts are taken from the Plaintiffs' Complaint. Revelis is a United States citizen, while Maas is a native and citizen of the Netherlands. The couple lives in Chicago, Illinois.
Maas last entered the country through the Visa Waiver Program in 1999. He and Revelis began dating, moved in together in 2002, and were married in Davenport, Iowa on Christmas Eve in 2010. The couple wants to remain in the United States, so Revelis has filed a visa petition, called an I-130 Petition for Alien Relative, on behalf of Maas. Such a visa petition, if approved, would allow Maas to apply for lawful permanent residency in the United States. 8 U.S.C. § 1151(b)(2)(A)(I); 8 U.S.C. § 1154(a)(1)(A)(I).
On March 10, 2011, the couple was interviewed on the visa petition at the Chicago field office of the U.S. Citizenship and Immigration Services (the "USCIS"), an agency of the Department of Homeland Security. Plaintiffs assert that there has been no allegation that their marriage was entered into in bad faith, but that regardless of the validity of their marriage, DOMA prohibits the USCIS from approving the visa petition. The agency has not yet ruled on the petition.
B. Regulatory and Legal Framework
Under the Immigration and Nationality Act (the "INA"), United States citizens may petition the Attorney General to classify their spouses as immediate relatives. 8 U.S.C. § 1101, et seq. If approved, this allows non-citizen spouses to be granted permanent resident status ahead of other immigrants who want to make their home in the United States. 8 U.S.C. § 1151(b); Smith v. I.N.S., 684 F.Supp. 1113, 1115 (D. Mass. 1988).
In order to determine whether a marriage is valid for immigration purposes, the USCIS must determine whether the marriage is valid under state law and whether it qualifies under the INA. In re Lovo-Lara, 23 I. & N. Dec. 746, 748 (citing Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982)). The validity of a marriage under state law is generally determined by the law of the place where the marriage was celebrated. Lovo-Lara, 23 I. & N. Dec. at 748.
The INA does not define the word spouse or refer to the sex of the parties. Id. However, the USCIS follows the federal definition of marriage and spouse as provided by Section 3 of the DOMA. Id. at 748--49. DOMA provides:
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. 1 U.S.C. § 7. As such, for immigration purposes "there is no question that a valid marriage can only be between a man and a woman. Marriages between same-sex couples are excluded." Lovo-Lara, 23 I. & N. Dec. at 749.
The burden of proof is on the petitioners to prove eligibility for an immediate relative visa, including that the marriage is not a sham. See Gipson v. I.N.S., 284 F.3d 913 (8th Cir. 2002). If a visa petition is denied, the petitioner may appeal to the Board of Immigration Appeals (the "BIA"), which has final administrative authority. Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006). However, the BIA does not have jurisdiction to review constitutional challenges. Calderon v. Reno, 39 F.Supp.2d 943, 954 (N.D. Ill. 1998). If an administrative appeal is unsuccessful, the couple may seek review in the federal district court. See Ghaly v. I.N.S., 48 F.3d 1426 (7th Cir. 1995).
In February 2011, the Obama Administration determined that it would no longer defend the constitutionality of Section 3 of DOMA, reasoning that heightened scrutiny should apply to DOMA and that under that standard, it was unconstitutional. See D.E. 15, Ex. A (letter from Attorney General Holder to Kerry Kircher, General Counsel for the U.S. House of Representatives). However, President Obama has instructed executive agencies to continue to comply with the law until it is repealed or the judiciary makes a definitive ruling as to its constitutionality. Id.
Although Defendants will not defend the constitutionality of DOMA (hence the motion to intervene by BLAG), they have moved to dismiss this action pursuant to FED. R. CIV. P. 12(b)(1). Defendants argue that because the USCIS has not yet acted on the petition, Plaintiffs lack standing and any dispute over the constitutionality of DOMA is unripe. The Court will consider each Motion and its applicable law in turn.