DOMA Deportations: What the President Can Do

From the Washington Blade. Full story here. While this article does not produce much diversity in response to its rhetorical headline, The DOMA Project is included here as an example as one very real ways in which the executive branch can re-evaluate the landscape of deportation proceedings for development of public policy to address urgent humanitarian crises.

Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representing three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.

Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco; Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; and Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J. Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.

“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.

In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available. According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.

“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”

Breaking News: Rep. Zoe Lofgren Calls on Obama Administration to Defer DOMA Deportations

Rodrigo & Edwin
celebrating their marriage

Full updated Advocate article here.

On Wednesday, Rep. Zoe Lofgren of California, ranking member of the House Judiciary Subcommittee on Immigration Policy and Enforcement, told The Advocate that she agrees with Nadler on deferring deportation proceedings in cases involving married, gay binational couples such as Echegoyen and Martinez: “I think [DOMA] is unconstitutional and that the federal government ought to respect couples who have married in states that permit marriage,” she said.

Lofgren said she has friends and constituents in her San Jose, Calif. district facing immigration challenges as a result of DOMA. “It’s a heartbreaking situation across the United States,” she said. “This administration, as with any administration, has tremendous flexibility under current law to make its own judgment for fair treatment” of such couples.

Breaking News: Congressman Nadler Calls for Halt to DOMA Deportations

“An Evolving Immigration Landscape,” The Advocate, March 2, 2011. Full article here.

Soloway has argued that executive branch agencies, including the Executive Office of Immigration Review and Immigration and Customs Enforcement, should “develop innovative strategies” to keep binational gay couples together pending Congressional resolution.

The administration has not yet formulated a policy on deportation cases involving married binational gay couples following the DOMA announcement last week. But Soloway pointed out that DHS in recent years has amply used its powers of discretion in other removal situations. In 2009 it issued a moratorium against deporting widows or widowers of U.S. citizens who had been married for less than two years while Congress worked on a legislative fix supported by the administration. Last year the department offered “deferred action” to allow students eligible for legal status under the DREAM Act to remain in the country and avoid deportation (Congress failed to pass the bill in December).

“What we’re talking about here is a small group who faces deportation—the ultimate punishment in an immigration context—and we’re talking about priorities,” Soloway said. “And every day the executive branch makes decisions on how to expend its resources.”

Rep. Jerrold Nadler of New York, who said last week that he would reintroduce a bill to repeal DOMA, said that while the administration has made clear that it would continue to enforce the law, “If it’s the case of a legally married couple under the laws of a state or the District of Columbia, the administration ought to argue in court not to deport them.”

Nadler is also sponsor of the Uniting American Families Act, legislation that would give gays and lesbians the right to sponsor a non-citizen partner or spouse for legal residency. “I’ve always said that UAFA is not a gay marriage bill,” Nadler said, “but I’ve also always said that if DOMA were ever repealed, and that if gay marriage were recognized, the bill would be [unnecessary]. … If DOMA is unconstitutional, then immigration law should apply equally to anyone legally married under state law.”

Just Married! Together for Eight Years, Edwin & Rodrigo Fight to Stop a March 9 Deportation

Edwin Echegoyen and Rodrigo Martinez

On Tuesday March 1 Edwin Echegoyen and Rodrigo Martinez of Rockville, Maryland exchanged vows of matrimony at the DC Superior Court on Indiana Avenue in Washington, D.C. Like most newlyweds, they had made the journey from courtship to cohabitation, with their love growing stronger year after year. After nearly eight years together as a couple, their lives fully integrated, and their commitment to each other stronger than ever, they decided to marry. Edwin, an American citizen, and Rodrigo, a citizen of El Salvador, were hoping to hold out until they could marry in their home state of Maryland. The news on that front had been very optimistic. Maryland is currently poised to pass a Marriage Equality bill that had sailed through that state’s Senate by a comfortable margin on February 24.  Still, that bill may not become law for a few months and Edwin and Rodrigo could wait no longer. Last month they were informed by the Department of Homeland Security that Rodrigo would have to surrender for deportation on March 9. With deportation looming, they knew that this was their time.   They had to marry while they still had the chance.  On Wednesday February 23 their plans to marry received an endorsement of sorts. The White House announced that it would not longer defend a law that discriminated against same-sex marriages.  It seemed that everything was coming together. Edwin and Rodrigo called their friends and family and soon a pre-wedding celebration was planned. It took place last week, at a gathering where the couple was wined and dined and toasted.  Everyone wished them well for a future full of happiness, but Edwin and Rodrigo knew that the immediate future was going to be very challenging. Dark clouds had gathered on the horizon for this couple.  The deportation letter without warning, came after years of struggling to obtain legal status without success. Like other gay binational couples, the normal remedy—immigration in which the American sponsors the foreign spouse—was foreclosed to them because of the Defense of Marriage Act.

By Edwin Echegoyen

2003 was an eventful year for me. My mother was diagnosed with terminal stomach cancer, and I met the love of my life, Rodrigo Martinez. Back then I did not realize how these two events would come to impact my life, but even then I had a strong sense that that my life would not ever be the same.

Until I met Rodrigo, I guess you could say that I was unsuccessful at dating; I never met anyone with whom I clicked. Tried as I might to find a mate that special person eluded me. I believe this stemmed from my church upbringing because I grew up as a born-again evangelical Christian. When I was 15, I left El Salvador to join my father and stepmom in the United States. At that age I did not have a firm understanding of my sexual orientation, but I wrestled with the realization that I was attracted to other guys. It would prove to be a long journey.

With a career as a federal employee well underway, I had almost completed my Master Degree, when, in my final semester of school in 1999 I got engaged to a woman. In my mind it was the perfect timing: to finish my Master’s Degree, plan a wedding and start a family. That was what was expected of me by my family and I was eager and willing to fulfill my new roles as husband and father. And as you might expect, the pressure I put on myself to do everything expected of me brought the house of cards crashing down. I couldn’t go through with it. I broke off my engagement because I realized and accepted that I was gay and I could not lie to her and live my life as a big charade. Needless to say it took me a while to bounce back.

A few years later, I met Rodrigo at the gym. Although he was 10 years my junior, he was mature beyond his years and had a caring, generous spirit.   As our dating grew more serious, it was an easy transition for me to think of him as my life partner. He was such a sensitive and thoughtful person and everyone who came into contact with him noticed these traits. As time passed, he came to know my mother and the rest of my family, and they, too, embraced him as an “adopted” relative. Our relationship developed very naturally, and before long, we started living together in the Rockville, Maryland, a suburb of Washington, DC.

Living with Rodrigo and settling down to a domestic routine was one of those things in life that is so easy to take for granted. I had never been happier. Our relationship blossomed with each year. We were mutually supportive and emotionally interdependent as a couple.

Over time we realized that we had developed a deep and abiding love for each other.  We were extraordinarily compatible. We shared the same humble origins in El Salvador; the same religious upbringing; the same language; and enjoyed the same food.  But our newfound happiness was interrupted by events in 2004. My mother, who had been struggling with her terminal diagnosis, took a dramatic turn for the worst and died in March.  My mother’s death was devastating, but the pain of such a huge loss was made bearable only because I had the incredible support and unconditional love of Rodrigo. To this day I still cannot comprehend how Rodrigo, despite being young himself, was able to summon the strength to be so strong and caring at my moment of intense grief. Rodrigo saw me through my worst moments, and he never wavered in his commitment and compassion for me.

That summer we decided to go on vacation to Puerto Rico with three other gay couples. The eight of us traversed the beautiful island creating memories and enjoying ourselves. However, on our return to the United States, Rodrigo was stopped by the authorities. Even though we were technically on a domestic flight and he had not left the United States, they caught him. He was in the U.S. on an expired visa. (I had become a naturalized U.S. citizen many years before.)

Up to that point we really had not focused much on Rodrigo’s immigration status. We had settled into our routine and we had not considered the possibility that immigration officers might one day come between us. Our relationship was strong but it was also so normal, we simply took for granted that we would be able to be together for the long term. When we did turn our attention to Rodrigo’s immigration status we wrongly believed that it would be a relatively simple matter for him to acquire legal status.

At the moment Rodrigo was stopped by the Immigration Officer, I knew that if I could have married Rodrigo and sponsored him to remain in the United States he would have been eligible for a green card like any other spouse of a U.S. citizen. (Even individuals who overstay visas are not barred from a green card if they are married to an American citizen.)  In those days, gay couples were just for the first time winning the right to marry in Massachusetts.  In fact, if we had married in 2004, and if U.S. immigration law had recognized that marriage, Rodrigo would have been given a “green card” and he would be a naturalized American citizen by now.  Instead, we found ourselves scrambling to hold onto any ray of hope offered by a never-coming immigration reform, and ostracized by a society that does not allow us to share the protection enjoyed by straight couples.

When Rodrigo was detained in 2004, I posted bail to allow him to remain in the country until his legal status changed. However, despite several attempts to resolve his status, we were unsuccessful. Recently I recently received a letter in the mail from the Department Homeland Security ordering me to turn Rodrigo in to the authorities on March 9 so they could deport him. To us deportation is like a death sentence. It is hard to explain how we felt when we received the letter. It was as though we were punched in the gut and could not catch our breath.

As soon as received the letter we decided to marry.  Although we had been hoping to marry in Maryland where we live but we cannot wait. If Rodrigo is deported next week after 8 years together we may never get the chance to marry.  While the urgency of the current situation has pushed us to this decision, it was definitely true for us that this next move was the natural evolution of a strong, committed relationship. We came to this decision with the love and support of our friends and family and with the hope that the recent decision by President Obama and Attorney General Holder to stop defending the Defense of Marriage Act in court will yield some short-term solution for binational couples who are fighting deportation.

Attorney General Eric Holder

We know that the Defense of Marriage Act remains in effect, but we are just asking for more time.  After 8 years as a couple, we believe that we have the right to be treated equally. Our love is the same as any other couple. Our need for our family to be protected is the same as any other.  We are not asking for special privileges. We do not even want a fancy wedding. We just want to continue living our normal everyday life as a couple with all the rights, protections and obligations extended to two people in love who have committed through marriage to care for each other.

We ask everyone who is reading this to help us stop the deportation of RODRIGO MARTINEZ-RODRIGUEZ (File Number A96 336 082) by CALLING both the DC and local offices of our United States Senators Barbara Mikulski [(202) 224-4654 and (410) 962-4510] and Benjamin Cardin [(202) 224-4524 and (301) 762-2974] to our Representative Chris Von Hollen [(202) 225-5341 and (301) 424-3501]. Ask them to contact the Department of Homeland Security Deportation Unit in the Baltimore Field Office immediately. We only have 8 days left to stop this deportation.

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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.