DOJ to Married Green Card Applicants: DOMA Still Applies

From Keen News Service:

Just days after putting the applications for green cards on hold for same-sex married couples, the U.S. Citizens and Immigration Service (USCIS) announced it is back to processing them again—with the Defense of Marriage Act (DOMA) in play.

“The last few days have been extremely frustrating and disappointing,” said Lavi Soloway, an attorney specializing in binational same-sex married couples seeking immigration. “USCIS raised hopes that they had created a desperately needed interim remedy that would protect married gay and lesbian binational couples. But within days, the administration reversed the abeyance policy that had been in place in two USCIS offices, and briefly, nationwide. In the process, they created tremendous confusion.”

Christopher Bentley, press secretary for USCIS, said Wednesday that the agency has received the legal guidance it sought from the Department of Justice concerning DOMA and green card applications by same-sex married couples.

Same-sex married couples’ applications are “no longer on hold,” he said. And “USCIS has not implemented any change in policy and intends to continue enforcing the law.” In other words, DOMA still applies.

DOMA prohibits any agency of the federal government from recognizing a marriage license granted to a same-sex couple. For binational same-sex married couples seeking a green card to enable the foreign spouse to establish permanent residence in the U.S., the law closes a door open to other married couples. Spouses and other “immediate family members” can obtain green cards without waiting for a visa number to become available.

USCIS sought clarification from DOJ after U.S. Attorney General Eric Holder announced February 23 that DOJ would no longer defend DOMA in court as meeting heightened constitutional scrutiny. DOJ had also indicated it would continue to enforce DOMA until or unless the courts determined the law was unconstitutional. But some attorneys in the immigration field questioned whether the Holder announcement might apply to immigration courts.

USCIS issued a one-sentence statement Wednesday, saying, “USCIS has not implemented any change in policy and intends to continue enforcing the law.”

Soloway characterized that “explanation” as “unacceptable.”

“While DOMA is the law of the land, green card applications cannot be approved by USCIS,” said Soloway, “but there is no imperative that they be denied. Adjudications can be put on hold with final decisions on these cases deferred, giving binational couples lawful status and protection from deportation until DOMA is either repealed by Congress or struck down by the Supreme Court.”

“This unconstitutional law,” said Soloway, “should not be used as an excuse to do nothing while gay and lesbian families are being torn apart.”

Copyright ©2011 Keen News Service. ALL RIGHTS RESERVED.

ABC News: Emotional Rollercoaster Over DOMA

Full story here.

“I am a scholar of ancient Greek political thought and the Renaissance and politics,” said Vandiver, 29. “I never intended or wanted to be an activist. But I have to do what is necessary to save my marriage and to keep the one I love in this country. I think that is my right as an American citizen.”

Josh & Henry Meet With Congressman Rush Holt, Gay City News Reports on Progress and Setbacks

Excerpt from “Progress–and Fits and Starts–on Immigration,” Gay City News, March 31, 2011.

“In a dizzying — and not fully transparent — series of developments this past week, the prospects for married same-sex bi-national couples hoping to stay in the US showed improvement, though how far-reaching the gains are remains uncertain as of press time.

In what appears to be the first such action of its type, an Immigration Judge in Manhattan, who works under the Justice Department, on March 22 adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

Also last week, Newsweek reported that the heads of two district offices, in Baltimore and Washington, DC, of the US Citizenship and Immigration Services (USCIS) — which is part of the Department of Homeland Security — had separately stated publicly they have put on hold the processing of any applications for spousal recognition or green cards from married same-sex couples. Such applications have routinely been denied in the past, so by putting them instead “in abeyance,” USCIS would be strengthening the arguments a married same-sex couple would have in deportation proceedings before an Immigration Judge.

In comments made to Metro Weekly on March 28, a USCIS spokesman in Washington said the abeyance policies adopted by the DC and Baltimore offices were now in place nationwide, a development that would represent a huge victory. After Metro Weekly published that news, however, another Homeland Security official told the newspaper that the abeyance was temporary — perhaps as short as a week — designed only to allow the department’s general counsel to examine the impact of the Justice Department’s February announcement that it now views the denial of federal recognition of same-sex marriages mandated by the Defense of Marriage Act unconstitutional. DOMA is the basis on which USCIS has to date denied applications for spousal recognition or green cards from same-sex married couples. Precisely where that Homeland Security clarification leaves the issue remains unclear.

[Update: On the morning of March 30, after the publication and posting of this story, Metro Weekly reported that USCIS stated that the temporary policy of abeyance has ended as a result of a new guidance from internal counsel. A spokesman told that newspaper that applications from married same-sex couples would once again be processed as they have been previously, in compliance with DOMA. That spokesman, Christopher Bentley, later told Gay City News that the end of the abeyance period applies in Washington and Baltimore as well as in the rest of the nation. He also said, however, that none of the discretion USCIS or Homeland Security had under the law previously has been curtailed as the result of the Justice Department's February statement that DOMA would continue to be enforced.]

The victory last week in Manhattan was less ambiguous, though the specific steps forward for the couple are not yet known. Monica Alcota, 35, who came to the US a decade ago, married her partner of nearly three years, 25-year-old Cristina Ojeda, last August in Connecticut. The couple’s attorneys, Lavi Soloway and Noemi Masliah, argue that their clients’ marital status should qualify Alcota for permanent residency, as would be the case with any different-sex couple.

A 2010 US court ruling striking down the Defense of Marriage Act’s denial of federal recognition for legal same-sex marriages, they say — coupled with the Justice Department’s recent announcement regarding DOMA’s constitutionality — opens up the real possibility that Alcota and Ojeda may win recognition from the US government. At the US courthouse in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the USCIS through what is known as Form I-130, a petition to have Alcota recognized as “the spouse of USC.”

For now, the couple’s case has been adjourned until December, a decision supported by the government’s attorney.

“It is almost impossible to overstate the significance of what happened in there,” Soloway said immediately after the hearing. “An adjournment based on an I-130. It would never have happened a year ago. I don’t think I even would have filed it.” Describing the development as “huge,” Soloway also credited Bain with being “very kind, very generous” in her handling of the case. Masliah echoed her law partner’s assessment, terming Bain’s action “benevolent”; she added, however, that it is also “realistic in light of recent developments.”

Steve Ralls, a spokesman for Immigration Equality, which advocates on behalf of bi-national gay and lesbian couples whose right to stay together in the US is threatened, agreed with the assessments by Soloway and Masliah that Bain’s action was both significant and appropriate in the current context. “It sounds like what happened in this case is what should have happened,” Ralls said. “We have other families planning to file I-130s, and this should be good news for them.” To the best of his group’s knowledge, he said, Bain’s move was unprecedented.

Last week, Immigration Equality wrote to Holder asking that proceedings against immigrant same-sex spouses facing deportation be placed on hold while the DOMA issue remains in the courts.

For Alcota and Ojeda, the legal developments of the last eight months represent some respite from what has been “hanging over our heads,” Ojeda explained — “that I would lose her.” That’s exactly what happened to Ojeda — for three months, at least — in 2009. As the Queens couple was traveling by bus through upstate New York, a spot border control check resulted in Alcota being detained by immigration officials. She ended up in a detention center in Elizabeth, New Jersey, from which she could have been deported at any time.

Finally, an Immigration Judge — a woman, the couple noted — saw Alcota and determined she had “a reasonable fear” of persecution should she be returned to Argentina. She had fled her home country, where she lived in a region near the Chilean border, with her then-partner because the two believed their lives were at risk. Soloway said if court challenges to DOMA ultimately prove unsuccessful, he would argue Alcota deserves asylum based on her provable fear of persecution back home.

After the ten-minute hearing, Alcota remained nervous, the adrenalin apparently not yet having worked its way through her system. Still, she expressed relief that she will have the chance to fight for the validity of her marriage. “Now I feel relieved,” Alcota’s spouse Ojeda said. “That they are going to give us a chance to argue our case.” Ojeda said Bain’s action “acknowledged our marriage.”

With DOMA litigation and the status of Ojeda’s I-130 likely to still be open questions in December, Alcota’s next appearance before Judge Bain could amount to nothing more than a perfunctory status update and further adjournment.

Josh Vandiver, 29, and his Venezuelan-born husband, Henry Velandia, 27, who live in Princeton and are also clients of Soloway’s, find themselves in a somewhat different position than Ojeda and Alcota. With Velandia facing a deportation hearing on May 6, the couple endured a setback when, in early February, Vandiver’s I-130 application was rejected — in lightning speed, according to Soloway. Just days before their motion to the Board of Immigration Appeals challenging that denial was due, however, the Justice Department issued its new position on DOMA’s constitutionality, giving added strength to Vandiver’s claim that his spouse ought in fact be recognized as his spouse for immigration purposes.

Soloway drew on the Justice Department’s February DOMA statement in finalizing the appeal motion, but on his advice, the couple has now decided to drop the appeal route in favor of resubmitting an I-130, along with a green card application. News of the abeyance policy acknowledged by the USCIS’ Washington and Baltimore district offices certainly lent comfort to that decision — and the suggestion on Monday from the agency’s national spokesman that all applications might now be on hold seemed the best news of all.

For Vandiver and Velandia, who attended a March 28 immigration forum in Princeton where their congressman, Democrat Rush Holt, committed to pressing Homeland Security to handle I-130 applications like theirs in a way that will not lead to deportations, the situation nevertheless remains unsettling.

“We are still worried that until the Defense of Marriage Act is defeated, Henry can’t get his green card, which will protect him,” Vandiver said. “Henry’s deportation is still looming. We have a hearing on May 6.”

Noting that matters are still very much in the hands of the Immigration Judge they happen to face, Vandiver acknowledged that the Obama administration’s changed tune on DOMA was the most positive development he and Velandia had seen. “If not hope,” he said, “at least it provided relief that the most powerful officeholder is aware of the pain caused by DOMA. A sense of relief and an appreciation on our part.”

NY1 Noticias Reports on Henry & Josh and the Fight Against DOMA and Deportation

Watch NY1 Noticias report: “Matrimonios homosexuales no tendrán beneficios de inmigración,” here. Pictured below: Noemi Masliah, co-founder of The DOMA Project.

New York Times: Confusion Over Policy for Married Gay Binational Couples

Read full article here.

“Word also went out across the country. In Princeton, N.J., Josh Vandiver and Henry Velandia, in the middle of a public forum on immigration issues, embraced and cheered. They said they had heard from their immigration lawyer that the agency’s announcement might mean at least a temporary reprieve from deportation for Mr. Velandia.

Mr. Vandiver, 29, is an American citizen and a political science graduate student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were married last August in Connecticut, one of the states that recognize same-sex marriages. Their application for a green card for Mr. Velandia was recently denied, and he is facing deportation as early as May.

But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship and Immigration Services “has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law.”

Mr. Bentley said the agency’s field offices had suspended cases for a short period, perhaps a week or two, while lawyers clarified a “narrow legal issue” concerning the marriage act. He said the agency would probably resume action on same-sex marriage cases in coming days and would continue to deny immigration status to foreigners based on those marriages.

Immigration lawyers tried on Tuesday to sort out the meaning of the events.

“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand that “if they file for immigration status, they may be putting themselves at considerable risk of deportation.”

Daily Brink: Josh & Henry, Lawful Husbands

“While we initially expected to dive into a heavy political conversation with Josh and Henry, we found ourselves simply talking to two men with an extraordinary amount of love for one another, and a simple request: equality.” - Daily Brink’s profile of Josh and Henry

DHS Signals Quick End to Temporary Abeyance Policy For Green Card Cases Filed By Gay and Lesbian Couples, As Final Guidance Is Awaited

Update: “The Hold is Over,” Metro Weekly, March 30, 2011.

Breaking News from Metro Weekly:

Excerpt below:

The announcement on Monday, March 28, that the U.S. Citizenship and Immigration Services had issued guidance instructing its field offices to put on hold cases involving same-sex, married bi-national couples seeking a green card for the foreign spouse sent shockwaves throughout the immigration and LGBT communities. Further clarification from Department of Homeland Security officials, however, suggests a much more limited, nuanced decision that leaves the issue unresolved and couples’ futures in doubt.

On Monday afternoon, USCIS spokesman Christopher Bentley told Metro Weekly, “USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

Despite statements from leading organizations – most prominently, Immigration Equality – suggesting that the cases would be held in abeyance until DOMA’s constitutionality is settled, a DHS official told Metro Weekly on Monday night that the abeyance could last for as little as a week.

“[P]ursuant to CIS’s routine practice when there’s a new law or regulation that will potentially affect their resolution of certain cases, they hold [the cases] in abeyance until they get the final guidance from the general counsel’s office,” the official said. “DHS expects this issue to be resolved imminently.”

After that abeyance has ended, the official notes, “[I]n individual cases, USCIS has always had the authority to exercise discretion on a case-by-case basis, in light of the unique circumstances of that particular case.”

Associated Press Interviews Noemi Masliah

“Noemi Masliah, an immigration lawyer for 35-year-old Monica Alcota, said the judge’s decision to adjourn her client’s deportation case until December gives the government a chance to fully review her petition for legal residency based on her marriage.

“The right thing to do, and this judge did do the right thing, is to adjourn this case and see what happens down the road,” Masliah said. “Given that the law is so up in the air … it’s hard to enforce at this point in a negative way.”

Masliah, who is part of a group trying to push the government to stop denying immigration benefits to same sex couples, said she hopes that all such applications will be put on hold indefinitely until the future of the Defense of Marriage Act is settled in court.”

Full article here.

Together for 12 Years, Nick and Graham File Fiancé Visa Petition in Exile and take on DOMA

In the wake of the tremendous news from USCIS yesterday that it will accept green card applications for gay couples and put final decisions on those applications in “abeyance” or on hold temporarily, it is important to remember that as we take tiny incremental steps toward full parity for same-sex binational couples in the U.S., thousands of gay and lesbian couples have been forced into exile or separation over the years. The policy announcement yesterday does not bring those couples any closer to a solution that will allow them to return to live together in this country. It is it vital that we not become complacent; we must continue to tell our stories and stay fully engaged in the fight to end the cruel reign of DOMA. DOMA will continue to destroy families and tear apart married gay and lesbian couples until it is repealed or struck down by the courts. We must actively fight for its demise in both the court of public opinion and in Congress if we are finally to bring an end to the long nightmare suffered by tens of thousands of binational gay and lesbian couples.

Nicholas and Graham

Like many other couples who are married or in long-term relationships, Graham and I knew instinctively that we would be together forever from the moment we met on October 24, 1998. Graham was living in Florida on a valid visa and when we met he was in the process of changing visa status so that he could start a business. Unfortunately, that status change was never granted, and before long Graham’s right to stay in the U.S. legally had expired. By then it was too late, for Graham and I were deeply in love and living as a couple. Of course we knew that if we were a heterosexual couple, there would be no difficulty. We would have married and after some paperwork and an interview the love of my life would have been given a green card, even if he overstayed his non immigrant visa status. But of course, that is the crux of the problem. Being a bi-national gay couple, we were about to experience 12 long years of cruelty courtesy of discriminatory immigration laws and the Defense of Marriage Act.

We understood how difficult life would be. Graham was unable to work, or obtain health insurance or enjoy any of the other privileges and protections that would be normally within reach for “lawful permanent residents” or “green card” holders in the U.S. Graham could not visit his mom back in the UK either, as he would not have been alowed back in the U.S. for at least 10 years. When his grandfather became terminally ill, his mother was forced to contend with this family crisis by herself, because Graham, her own child, was trapped by US immigration laws. As bad our circumstances were, the alternative was unthinkable. We were inseparable and utterly devoted to one another. We could not imagine a life apart.

As the U.S. citizen partner, I provided for both of us entirely, working tirelessly to build a life we could share, while my own government forced us onto the margins where our relationship didn’t exist in the law. I had to give up a job I loved in a bookstore in order to make more money in a job I hated, insulating attics in the Florida heat. I supported Graham financially and emotionally and I was painfully aware that I was unable to sponsor him for legal status—not as my spouse, partner or fiancé—-due to laws preventing same sex couples from doing so.

Despite the obvious hardships of being a bi-national same sex couple, we were happier than either of us had ever been in Florida. My family welcomed Graham with open arms and regarded him as my “husband.” Graham became a “son-in law” to my parents, brother to my older sister and older brother and an uncle to my nephews and neices.

Initially, on a tight budget, we lived with a roommate friend; it meant that Graham and I had to share a small single bed in a tiny room. It wasn’t much, but it was ours and it was bliss. Working hard and saving, I purchased our first home for us within a year of being together.

In February 2000 we had a commitment ceremony in Orlando. We knew it wasn’t a legal ceremony, but we had a Minister who was happy to perform the ceremony and lots of friends and family (my family in Orlando and Graham’s Mom from England) were there to share our special day with us. We had two best men and six bridesmaids, one of which was my sister. It was absolutely wonderful and an event we will both cherish for the rest of our lives.

By 2003, it was time to take a step up the property ladder. We sold our house and bought what was for us our “dream” Florida home. The construction industry was still in a boom so I was making decent money. At the same time, as we reached our mid 30s we became increasingly aware that our future was uncertain. If I were to lose my job through injury or an economic downturn we would have lost our home. If I were to lose my life, Graham would have been left destitute and alone in a country refusing to acknowledge his relationship to me.

For almost seven years we lead a truly wonderful life, yet the fear of being separated never completely left our minds. We were always wary of being discovered, perhaps, in retrospect overly so. We were so afraid Graham would be found out that Graham even avoided medical treatment at times when he desperately needed it because he was too afraid to make his existence known to anyone. We were happy in our own little world, surrounded by family and close friends. Unfortunately all that changed in 2001 following the terrorist attacks in New York and Washington, DC.

Due to our location near to Walt Disney World, we couldn’t go anywhere without running into heightened security; police and security guards almost always asked for identification. Graham was so terrified that he became a recluse. So afraid was Graham that a routine security check would make his presence known to the immigration authorities that at one point he actually stayed inside my home for six months without ever leaving. Graham’s health suffered and ultimately he had no choice but to see a doctor. He was diagnosed with agoraphobia and social anxiety disorder, which were attributed to the years of insurmountable stress and fear of living in hiding that climaxed during 2001.

We endured this life for a further three years until we could take the pressure no longer.

In 2004 we made the agonizing decision to leave the United States. There were many ways in which this was a hard choice, but what made it especially cruel was the fact that leaving meant Graham would be barred for 10 years upon departure from the U.S. as a penalty for overstaying his original visa (and, of course, Graham would not be eligible for a “waiver” as the spouse of a U.S. citizen) . It was like we were consigning ourselves to imprisonment abroad. In the U.K., where Graham is from, the government had instituted provisions recognizing same sex couples for the purpose of immigration. So we knew that was our only choice. When I say choice, I don’t mean free choice. We were forcibly exiled there, it was the only chance we had to live as free, equal and dignified people with all the rights of any person residing in the U.K. We had to put an end to the hiding and the fear.

When I shared the news of our decision, my family in Florida was devastated. My mother had already lost two of her sons to muscular dystrophy and a daughter in an horrific motorcycle accident, and now, she felt like she was losing yet another child. My brother and sister were losing another sibling, and all for the simple fact that there is no recognition of same sex couples under U.S. immigration law. For Graham, it was heartbreaking to see how this decision affected both me and my family. I was being forced to move to a country that I had never even visited. I was leaving behind all we had ever known, and most cruelly, I was leaving behind my family.

We were forced to sell our home to pay for legal costs and moving expenses. All that we had built and loved came to an end. Our American Dream was over.

We left the United States in January 2005. I entered the UK on an Unmarried Partners Visa. In February 2006, we became “civil partners” which awarded us the privilege of becoming one another’s next of kin under UK and European law.

Graham with Nicholas’ mother

But life in the UK has not been easy. We have struggled to make a life for ourselves here and continue to do so. We miss our old lives so terribly. I miss my homeland and my family. I have seen my Mother perhaps three or four times in the last six years when she was able to visit us. Graham is not allowed to visit the US and financial restraints make it virtually impossible for me to visit. Leaving America was the hardest thing we have ever had to do. Part of our lives died the day we left and the longing to return burns as fiercely now as it did then.

We have been together for twelve years now and we have only been apart once in all that time when I returned to Florida for a visit to see my family after my stepfather was diagnosed with cancer. Understandably, my Mother was unable to leave her husband so she paid for my flight to return home. We had a huge family reunion, but the fact that I had to do this without my life partner by my side made it a bitter sweet affair. Everyone kept asking, “Where’s Graham?” No one could believe that in this day and age we still have such archaic laws and notions about homosexuality. The short time I was away was almost unbearable for both of us, so reliant had we become on each other over the years. We spoke to each other twice a day on Skype, and we even had the webcam set up during the reunion so Graham could feel a part of it. Graham was happy for me that I was spending time with my family, but at the same time, he was heartbroken that U.S. law prevented him from returning to the United States to see the family of which he had become an integral part and which loved him so much.

My mom is 75 and my stepfather is 81. My stepfather had his colon removed due to cancer, which has now spread to his lungs and his brain. He is undergoing radiation therapy. A recent stroke has left the left side of his body practically immobile. My stepfather raised me from boyhood. He is the man whom I regard as a father. Now he is extremely ill and I cannot be there for him or to comfort and support my mother who desperately needs me there, because current US law prohibits this from happening. My mother underwent open heart surgery 10 years ago, and although she has recovered from the surgery, the strain of caring for her husband is putting her under immense stress, both physically and mentally. She desperately needs me back home. No mother should be put through such anguish and no son should feel so helpless to do anything to help. It’s such a heart wrenching position to be in. Unless you are going through something like this, you can’t begin to imagine how traumatic this is for someone, knowing that you cannot be there to help and support your own mother, or to be with your stepfather in his fight for survival that few, if any, manage to win.

We have always longed to return to America, but now, more than ever, we really need to be there.  The only thing that prevents us from returning to our family is the Defense of Marriage Act. If this law were not in place, I would be able to marry and sponsor Graham, like millions of other Americans before me who are married to foreign nationals.

Graham and I were 27 when we met. This year, we turn 40. We are as close now as we have ever been. And are utterly devoted to one another. I cannot imagine life without him. He is my everything. He is my world. Yet he knows that were it not for him, I would be back in America, caring for the people I love. I left my home, my family and my country so that we could live without fear of being torn apart, but that life changing decision has come with a hefty price.

To be so utterly compatible with someone and to be so utterly in love, but told you cannot be together because you are the same gender is perhaps the cruelest thing anyone can do to a couple who want nothing more than to live their lives together, surrounded by their family in a country they call home.  We have joined this fight by filing a fiancé visa petition and we will work to urge an end to discrimination against all gay and lesbian binational couples who live in fear of separation or isolated in exile because of the Defense of Marriage Act.

USCIS Announces: Abeyance Policy is National – Green Card Applications Filed By Gay Couples Will Be on Hold, Effectively Halting DOMA Deportations For Now

Read “Game Changer” and Chris Geidner’s Metro Weekly article (here) that broke this news this afternoon. It is vitally important that all couples obtain expert legal advice from immigration attorneys with experience on LGBT issues and DOMA. Also, it is important to note that the USCIS has not made a commitment to holding cases in abeyance for any specific length of time; this policy is discretionary and may be withdrawn at a future date.  For now USCIS is saying that abeyance is the policy as it waits “final guidance related to distinct legal issues.”

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.