Join Us: Rally Tomorrow at Newark Immigration Court to Stop The Deportation of Henry Velandia

WHERE:
Department of Homeland Security
Newark Immigration Court
Peter Rodino Federal Building
970 Broad Street
Newark, NJ
WHEN:  FRIDAY MAY 6 at 11 a.m.

On Friday, LGBT organizations from across the country will rally behind a gay bi-national couple facing impending deportation hearings. In the shadow of the Statue of Liberty, GetEQUAL is working with a host of other LGBT organizations — including Stop the Deportations, All Out, Courage Campaign, Garden State Equality, Immigration Equality Action Fund, Marriage Equality USA, Out4Immigration, Princeton Equality Project, and Queer Rising — to make clear that these deportations of must stop now.

The rally outside the Newark Federal Courthouse is taking place as a gay bi-national couple — Josh Vandiver of Colorado and Henry Velandia of Venezuela — are facing deportation hearings on Friday in Newark. Despite having been legally married in Connecticut in August 2010, Vandiver (a Ph.D. student at Princeton University) and Velandia (a salsa dancer, instructor, and founder of a Princeton-based dance studio) are facing a nightmare scenario — potentially being ripped apart from one another at the hands of the U.S. government.

Because of the Defense of Marriage Act (DOMA), which discriminates against same sex couples, the federal government doesn’t recognize their marriage. As a result, Josh cannot sponsor Henry for a green card — unlike any other straight married couple in the same situation. This legally married, loving couple are now at risk of being torn apart as Henry’s potential deportation date looms on May 6.

Josh and Henry have become tireless advocates for LGBT bi-national couples in the United States, while fighting to stay together and save their own marriage. Last fall they launched the “Stop The Deportations” campaign to raise awareness of the cruel impact that DOMA has on married same-sex bi-national couples and to challenge DOMA in immigration court proceedings.

“I never intended or wanted to be an activist, but I have to do what is necessary to save our marriage and to keep the man I love in this country,” says Josh, reflecting on their seven month campaign. “On May 6 Henry could be ripped away from me. But that doesn’t have to happen. The Obama administration can immediately stop the deportations of spouses of gay and lesbian Americans. This would ensure that Henry and I aren’t torn apart.”

For more information contact stopthedeportations [at] gmail.com

GetEqual’s complete press release here.

Video by GetEqual Calls on President Obama to Keep His Promises on the DREAM Act and DOMA

Down to the Wire for Josh & Henry: ICE Refuses to Terminate Deportation Proceedings, Citing DOMA

As we fight to stop Henry’s May 6 deportation, we are facing a growing DOMA problem: the President’s commitment to enforce DOMA has paradoxically made DOMA stronger.
Why is this administration, after declaring its belief that DOMA is unconstitutional, now enabling DOMA to extend its discriminatory reach?
All of us in the lesbian and gay binational couple community felt a surge of excitement when President Obama and Attorney General Eric Holder announced on February 23 that they would stop defending Section 3 of DOMA in federal court challenges.  Nevertheless, Holder made it clear in a letter to Congress that the administration would continue to enforce DOMA until it is overturned by courts or repealed by Congress.  In doing so, the Obama administration says, it is simply abiding by its constitutional duties, executing the laws passed by Congress.
However, the Obama administration’s commitment to enforce DOMA has had an unexpected effect.  At Department of Homeland Security (DHS) agencies such as Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), DOMA seems to be growing stronger, not weaker.  DOMA is morphing into something more powerful and more disturbing than a simple “marriage definition” statute. It has become Super DOMA.
The administration—guided by a political concern that they not be perceived by their opponents as ignoring DOMA—now cites the need to enforce DOMA to justify inaction for married, same-sex binational couples even in instances where DOMA does not preclude executive branch action. Just last week, DOMA was the reason given by government attorneys to avoid exercising prosecutorial discretion in Josh and Henry’s case, a context where DOMA would not even have been mentioned before February 23.
This was not the first time that executive branch remedies that could protect binational couples have been deemed out of bounds under an overly broad reading of DOMA. In March, the administration ordered USCIS to stop its “abeyance” practice (green card cases filed by married, same-sex binational couples were being put on hold and not denied).  The decision to order USCIS to deny those cases was framed as “legal guidance” and blamed on DOMA.  We argued that this interpretation of DOMA was wrong. Sixty members of the House and Senate and the American Immigration Lawyers Association and 81 other organizations called on the administration to restore abeyance. To be sure, DOMA does prevent USCIS from approving those cases.  However, it does not prohibit them from putting those cases on hold indefinitely.  So why is the administration taking this unnecessary position despite their objection to DOMA itself? This approach seems clearly designed to preemptively counter criticism from the right that this administration is in any way not fully enforcing DOMA.  Binational couples in need of executive branch remedies are the victims of this overly cautious political calculus.
The latest developments in Josh and Henry’s case reveal how the creeping effect of Super DOMA results in incorrect application of law and policy and inhibits discussion of perfectly legal executive branch solutions for gay and lesbian binational couples.
Background

Josh Vandiver and Henry Velandia have been together for more than four years and were legally married in Connecticut last summer. Henry, a professional dancer from Venezuela, was placed into removal proceedings in 2009 when his employment-based immigration case was denied. Last summer, Josh, an American citizen, filed an I-130 marriage-based green card petition for Henry. It was denied in January with the USCIS citing DOMA as the sole reason. After the President and Attorney General announced their new position on DOMA, we re-filed the petition for Henry’s green card. That petition is still pending. On May 6, Henry will appear in court for a final hearing before the Immigration Judge who will decide whether he will be deported. If Henry is ordered deported to Venezuela, he will be barred from returning to the United States for 10 years.

Josh and Henry Seek Exercise of Prosecutorial Discretion to Terminate Proceedings
Faced with the near certainty that the judge will order Henry’s deportation on May 6, the couple sought the co-operation of Immigration and Customs Enforcement (ICE) Chief Counsel in the Newark District office.  Specifically, they reached out to ICE to reach a compromise (“an exercise of prosecutorial discretion”) that would allow Henry to remain in the United States and postpone a final decision on his deportation long enough for DOMA’s fate to be determined by Congress or the Supreme Court.  New Jersey’s two U.S. Senators, Robert Menendez and Frank Lautenberg, have expressed support for Josh and Henry’s situation. Congressman, Representative Rush Holt, has specifically called on ICE to carefully consider our request.  And while ICE’s co-operation is important, the Immigration Judge will make the final decision.
ICE Denies Josh & Henry’s Request to Terminate Proceedings
Last week the Chief Counsel for ICE denied our request to terminate proceedings against Henry, citing DOMA. ICE asserts that because Josh’s pending petition for Henry’s green card will eventually be denied because of DOMA it wouldn’t be “appropriate” to entertain our request to slow down or terminate these proceedings.  But by blaming DOMA, ICE misses the point of our request.  Obviously, we are aware that DOMA prevents USCIS from approving the I-130 petition.  That’s why we are seeking termination on  other grounds. While DOMA prevents ICE from recognizing Josh and Henry’s marriage, it doesn’t prevent ICE from looking at all their other circumstances and exercising prosecutorial discretion.  This ICE office seems determined to hide behind DOMA, echoing the “must enforce” mantra coming from the President and the Attorney General.  But enforcement of DOMA is irrelevant to the exercise of prosecutorial discretion.  The denial by ICE is further evidence that a uniform, nation-wide policy halting these deportations is desperately needed.
Prosecutorial discretion isn’t special treatment. It is simply the process by which a law enforcement agency like ICE decides how aggressively any particular case should be pursued.  ICE routinely exercises prosecutorial discretion, deciding who to deport and who to leave alone. Convicted felons, gang members, terrorists and  others who pose a threat to their community or this country are at the top of the priority list.  On the other hand, where humanitarian circumstances exist – such as with Josh and Henry—ICE has the power to adjourn, administratively close or even terminate proceedings altogether.
In their denial, ICE did not explain why Henry could not simply be classified as a low-priority case and put on the back burner.  This is clearly a case in which Super-DOMA, given super strength by a government terrified of seeming lax on enforcement, shuts down rational consideration of any cases involving same-sex couples.   In the realm of Super DOMA, an otherwise reasonable prosecutor is blinded to the reality of the situation: a loving couple will be torn apart if ICE does not agree to termination or adjournment of proceedings.  Not only is this unacceptable from a humanitarian perspective, it doesn’t make sense from a legal perspective.  DOMA does not dictate that federal officials must close their eyes whenever a married gay couple appears before them.  It prevents recognition of their marriage.  It does not prevent recognition of their humanity.
NYC Wedding March September 2010 © Javier Soriano

Henry is not a priority for deportation according to the Obama administration’s own stated goals. He is not a criminal, he is not a gang member, he is not a threat to national security. He is of undisputed good moral character, a tremendous asset to his community where he is well known and respected as a professional dancer and dance instructor. He has strong ties to Princeton, New Jersey and has maintained a relationship for more than four years with Josh.   These are the circumstances that ICE should be considering when weighing whether and how to exercise prosecutorial discretion, not DOMA.

Also, ICE should be considering that Josh cannot move to Venezuela to be with Henry if this deportation is carried out. Venezuela provides no immigration rights to spouses or partners of gay Venezuelan citizens.
But rather than considering the circumstances of this case, ICE ducks behind DOMA.  The administration is more concerned about keeping up appearances to avoid criticism from its opponents than it is about finding solutions for couples like Josh and Henry who face irreversible harm because of unconstitutional discrimination.
Super DOMA will become a bigger problem than DOMA itself if we allow this political interpretation of the law to take root. We must aggressively reject any false reliance on DOMA offered as an excuse by this administration to do nothing in the face of devastating irreversible harm faced by binational couples like Josh and Henry.

Click here to find out how you can help us stop the deportation of Henry Velandia and all spouses of lesbian and gay Americans.

Frontiers: Binational Couples Face Heartbreak of DOMA – Deportation Hearing Looms for Doug & Alex

This comprehensive article by veteran journalist, Karen Ocamb, focuses on the crisis facing married binational couples because of DOMA. It is well worth reading in its entirety here.

Excerpt below:

And then there are Doug Gentry and Alex Benshimol from Palm Springs. Their deportation hearing is in July.

“Alex and I met when I was traveling to Palm Springs for work. We hit it off immediately and I invited him out to dinner,” Gentry tells Frontiers. “We had a lot in common, but were from completely different backgrounds. I was attracted to him not just for his good looks, but because he was interesting, intelligent and someone I wanted to get to know better. For our second date he offered me a home-cooked Venezuelan dinner, so of course I said, yes. That was just the beginning of what would turn out to be a long, loving relationship.

“In the next year and a half I moved to Palm Springs, we purchased a house and opened a business together, Alex’s Pet Grooming. Now we’re celebrating six years together,” Gentry continues. “We’ve been through good times and some very difficult times, including the death of my father. We love each other very much. My two children consider him to be another father, and they share a great relationship. We knew that we wanted to get married and to spend the rest of our lives together.

“Since, at the time, we couldn’t get married in our home state of California, we decided to go to Connecticut. We were married at the Lockwood-Mathews Mansion by State Senator Bob Duff on July 21, 2010.

“I submitted an I-130 Petition for Alien Relative form for Alex as my husband. We weren’t sure how it would be handled, but were very happy when we heard the news that the Obama administration would no longer defend the Defense of Marriage Act. We were happy again when we heard that USCIS [Citizenship and Immigration Service] had decided to hold approval/denial decisions on I-130s. Sadly, just a few days later they changed course and announced that they were going to deny them again.

“All of this has, of course, taken a terrible toll on Alex and me, on many levels. Because his visa expired, Alex has been put in removal proceedings. It’s difficult to live with the threat of deportation hanging over your head every day of your life. And it’s made worse by knowing that we wouldn’t be in this position but for DOMA, which is so obviously discriminatory and unconstitutional. There is so much frustration in knowing that it affects tens of thousands of binational couples who seem to be ignored. And the ups and downs from positive announcements, then negative announcements, are emotionally exhausting. You don’t know what to expect from one day to the next. You can’t plan for the future. You feel like you can’t ever relax.

“Honestly, Alex and I don’t have a firm plan B. It’s so hard to get your head around the thought of leaving your home, your business and your children. We just know that we can’t live apart and we know we couldn’t live in Venezuela. With its record of intolerance to the LGBT community and its unstable government, it’s just not an option.”

Lavi Soloway, who launched Stop The Deportations last year, has been the most prominent attorney/activist in the field for almost two decades. He notes that for a lesbian or gay American married to a foreign-born spouse, deportation is catastrophic. “Few policymakers realize how far reaching the impact of DOMA is in this context. These are spouses of American citizens, but once they are ordered deported, they will be banished from the United States for at least 10 years. In most cases there is no country in which same-sex binational couples can then seek refuge together. For these couples, DOMA is actually the Destruction of Our Marriages Act.”

And yet, as Soloway notes, it doesn’t have to be this way. “Since its first day in office, the Obama administration has had the discretion and authority to take immediate action to protect all lesbian and gay binational couples from deportation. After the president determined that DOMA was unconstitutional, his obligation to act using the power of the executive branch became that much clearer. As Homeland Security Secretary, Janet Napolitano has a responsibility to develop policy that values family unity and responds to humanitarian circumstances. Despite urgent requests from over 60 members of the House and Senate, she has remained conspicuously silent. Meanwhile, the brave couples who have stood up and told their stories and participated in the “Stop the Deportations” advocacy campaign continue to hold this administration accountable. President Obama, perhaps more than others, should realize how devastating it is to tear apart a family by deporting a foreign-born spouse. He is himself, after all, the son of a binational couple.”

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© The DOMA Project

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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.