Stop The Deportations Teams Up With Lambda Legal: Fighting DOMA at the Board of Immigration Appeals

Lambda Legal Files Amicus Brief To Urge Immigration Officials to Stop DOMA Deportation of Monica Alcota, and All Same-Sex Binational Couples

Cristina Ojeda and Monica Alcota

On July 11, Lambda Legal Defense joined the fight to stop the government from tearing apart Cristina Ojeda and Monica Alcota, a married, binational lesbian couple in Queens, New York. The nation’s oldest and most respected LGBT legal organization filed a friend-of-the-court brief at the Board of Immigration Appeals after the U.S. Citizenship and Immigration Services (USCIS) denied the couple’s marriage-based immigration petition.

Cristina and Monica have fought a high-profile battle against the Defense of Marriage Act (DOMA) and deportation proceedings since joining the Stop The Deportations campaign last summer.

In March, New York Immigration Judge Terry Bain, acting with the agreement of the Immigration & Customs Enforcement prosecuting attorney, postponed Monica’s deportation hearing on the basis that Cristina had filed a marriage-based “green card” petition for her. Monica and Cristina are scheduled to return to court in December for another hearing to review the status of that petition.

In April, USCIS denied Cristina’s “green card” petition for Monica, citing DOMA and also relying on a 1982 decision known as Adams v. Howerton from California’s Ninth Circuit Court of Appeals.  (That case involved a gay binational couple, Anthony “Tony” Sullivan and Richard Adams, who had fought and lost a legal battle against the then-INS.  In 1996, Lavi Soloway wrote this article about the couple and their fight on the occasion of their 25th anniversary. Tony and Richard recently celebrated their 40th anniversary and are still fighting for equality and justice for binational couples.)

Cristina appealed the denial of her petition to the Board of Immigration Appeals (BIA). The lawyers for the couple, Stop The Deportations co-founders, Lavi Soloway and Noemi Masliah, filed a brief arguing that the BIA should not affirm the denial considering that the Department of Justice, of which the BIA is a part, has itself determined that DOMA is unconstitutional.  The brief argued that the BIA should hold the case in abeyance, given the rapidly evolving legal context, specifically the DOJ’s filing of a 31-page brief against DOMA and in support of the plaintiff in the Golinski case on July 1; the DOJ’s decision to allow married same-sex couples to be recognized as married in U.S. Bankruptcy Court proceedings on July 7; and the Attorney General’s historic intervention in a BIA decision on May 5 that suggested the DOJ was considering whether “partners” in civil unions could be recognized as spouses for immigration law purposes.

Lambda’s amicus brief to the BIA argues that immigration officials are attempting to incorrectly apply the findings of the Adams v Howerton case to find a reason to deport Monica Alcota.


Lambda is coming to Monica’s defense with a brief that argues that Adams v Howerton has been superseded by multiple intersecting legal and legislative developments since 1982. Many modern recent developments for same-sex couples have occurred since 1982, including the rise of jurisdictions where marriages and civil unions between same-sex couples are recognized to be lawful, and where pending federal litigation are challenging the constitutionality of the Defense of Marriage Act.

Despite the obvious inapplicability of Adams v Howerton, USCIS continues to tear apart same-sex binational couples in situations similar to that of Cristina and Monica, ignoring their marriages. While Immigration and Bankruptcy Courts across the nation are showing flexibility in dealing with married same-sex couples, USCIS, which is part of the Department of Homeland Security, seems unwilling to entertain that option.

Lambda’s urged the immigration officials to exercise prosecutorial discretion to administratively close or postpone all pending immigration cases involving married same-sex couples, at least until DOMA is either repealed, or declared unconstitutional. Absent DOMA, there would be no obstacle to the approval of  the marriage-based “green card” petition filed by Cristina for Monica. Tens of thousands of lesbian and gay Americans would have equal access to the family unification provisions of U.S. immigration law, just like all married couples.

See Lambda’s complete press release and the amicus brief filed in support of Cristina Ojeda and Monica Alcota here.

Victory for Doug & Alex! San Francisco Immigration Judge Postpones Deportation Hearing for More Than Two Years

Alex and Doug attend rally this morning on Montgomery Street
across from San Francisco Immigration Court


Media contact: Justin Page/Lavi Soloway at [email protected] or 925-408-0662

Immigration Judge Postpones DOMA Deportation Proceedings For Two Years, Allowing Married Gay Binational Couple to Remain in U.S.; Directs Government Attorneys To Act on Request for Termination of Deportation Proceedings Within Sixty Days

SAN FRANCISCO, CA – This morning in San Francisco, Doug Gentry and Alex Benshimol — a married binational same-sex couple — appeared before Immigration Judge Marilyn Teeter for a deportation hearing and were permitted to remain in the country despite the Defense of Marriage Act (DOMA), the law that prohibits the recognition of same-sex marriages by the federal government. This is the latest in a series of recent court rulings that have demonstrated the inequality that DOMA forces same-sex couples to live under.

Specifically, the judge laid out two options. She gave the government 60 days to decide whether it will agree to drop deportation proceedings against Alex — a Venezuelan citizen — altogether. If the government elects not to drop proceedings, the same judge will revisit the case again in September 2013, ensuring that Doug and Alex are protected from deportation for at least two more years allowing them to return to building a life together with their family, including Alex’s two step-children.

“Today the Immigration Judge demonstrated compassion and understanding for Doug and Alex as a married binational couple, granting them a reprieve from deportation by postponing further proceedings to September 2013,” said Lavi Soloway, lawyer for Doug and Alex, and founder of Stop the Deportations. “The Judge also gave the government 60 days to inform the court whether it will agree with our request to terminate these proceedings pursuant to prosecutorial discretion guidelines issued June 17 by Immigration and Customs Enforcement Director John Morton. We will continue to advocate for termination of these proceedings and a moratorium on all deportations of spouses of lesbian and gay Americans.”

“Today’s victory is yet another sign that when we engage the system and demand full equality we encourage those in power to find reasonable interim solutions that protect LGBT families, even as we fight to bring about an end to DOMA.  Doug and Alex showed tremendous courage standing up for all binational couples as they insisted on fighting for an end to the government’s deportation proceedings against Alex. After the hearing the couple went for a celebratory lunch.  The couple looked forward to spending time with their extended family including Doug’s two children who have always considered Alex to be their step-father, even before he and Doug married last year.  They are very relieved to have been given a two year reprieve and they will continue to fight for an end to DOMA deportations, Soloway said.”

Alex came into the U.S. 12 years ago from Venezuela and overstayed a tourist visa, an immigration violation that straight binational couples can easily remedy once married; as a gay married couple, Doug and Alex do not have that option. Many binational couples are legally married like Alex and Doug, but they are still treated as legal strangers in the eyes of the federal government. There is only one reason Doug and Alex faced deportation proceedings at all — the Defense of Marriage Act, a law that the President and the Attorney General have both determined to be indefensible and unconstitutional.

To support the couple and to show widespread public support for their right to remain together, legally, in the United States, many organizations working for full federal equality for lesbian, gay, bisexual, and transgender (LGBT) Americans will hold a rally outside the courthouse in San Francisco where the hearing is scheduled to take place. Organizations leading the rally efforts include GetEQUAL, Marriage Equality USA, Out4Immigration, and Stop the Deportations.

These organizations launched a petition drive last week to show public support for Doug and Alex, garnering close to 17,000 signatures of individuals who are supportive of assigning all the same rights and responsibilities to binational same-sex couples as to binational heterosexual couples.

Organizations supportive of the couple and the rally include API Equality, API Legal Outreach, Asian Law Caucus. Asian Pacific American Legal Center, Central American Resource Center, Chinese For Affirmative Action, Equality California, Immigration Equality, Love Honor Cherish, National Center For Lesbian Rights, National Immigration Justice Center, San Francisco Immigrant Legal And Education Network, and the San Francisco LGBT Center.

Representatives Mike Honda (D-CA) and Zoe Lofgren (D-CA) have also been actively supportive of the couple, and provided written statements that were read at the rally. Rep. Lofgren’s statement included a passionate plea for binational families, including the excerpt below:

“Legally-married couples are being torn apart today in America because our laws unconstitutionally discriminate against same-sex marriages. Each and every day, American spouses are being forced to make unacceptable choices: live their lives separated from one another by thousands of miles, abandon their lives in this country and move someplace else, or break the law and go into hiding. This is a heartbreaking situation all across the United States. I believe the Defense of Marriage Act (DOMA) is unconstitutional and that the government should respect legally-married same-sex couples. I am confident that DOMA one day will not be law. The whole country will look back and understand it was simply discrimination.”

Speakers at the rally included Bevan Dufty (Supervisor), Phil Ting (Assessor/Recorder), Vincent Pan (CFAA), Ross Mirkarimi (Supervisor), Lavi Soloway (Attorney for Doug & Alex), Heidi Li (APILO), Ming Wong (NCLR), Ana Perez (CARECEN), Annette Wong (SFILEN), Dusty Araujo (NIJC), and Judy Rickard (Author, “Torn Apart: United By Love Divided By Law”).

Join us! Rally for Doug & Alex Wednesday July 13, 7:30 am San Francisco Immigration Court, Stop DOMA Deportation

For more information see this Facebook event page. Sign our petition to stop this deportation here.

Stop The DOMA Deportation of My Brother-In-Law: California Family Fights to Keep Doug & Alex Together

A letter from Cecily McDonald about the fight to keep her brother, Doug, and his Venezuelan-born husband, Alex, together in this country.

Doug and Alex on their Wedding Day in July 2010
         The Fourth of July has just passed, but for my family it doesn’t mean the same thing anymore.  As I sat and listened to the patriotic songs playing while we watched fireworks at the high school where 2 of my 3 sons have graduated, I was saddened.  Our family is not enjoying the freedom depicted in those songs.  Instead, we have a heavy cloud hanging over us because two members of our family are not free to enjoy the freedom and equality that our country celebrates on this holiday.  Those two people are my brother, Doug, and his husband, my brother-in-law, Alex.
            Most of our family first met Alex on Thanksgiving 2005.  Like other American families, we traditionally celebrate the holidays with the extended family and we are often joined by friends who aren’t able to be with their own.  Since that day we have all grown to love and admire him for many reasons. But now the Defense of Marriage Act (DOMA) is threatening to take him away from us all.
My brother Doug and Alex are now married, but because they are a gay couple, Alex is in imminent danger of deportation to Venezuela. This is only because their marriage and their 6-year relationship is not being respected as all other marriages are under federal immigration law. This inequality means Doug & Alex will be torn apart unless something is done very soon to save their marriage.  That is something very hard to understand and extremely upsetting in many ways.  Because of DOMA our family has become painfully aware that “all men are created equal” really means “only some men are created equal.” How can this be happening to all of us? I kept wondering that on the Fourth of July as we sat there surrounded by people waving our country’s flag and applauding the show.
            Let me try to explain why this is hurting our family.  For me, Alex is another brother.  Growing up it was only Doug and me, though I wished I had another brother or a sister.  When Alex became part of our family in 2005, we bonded quickly just as though we had always been siblings. Now I get to love, tease, talk to, and laugh with Alex and he gives it all right back. My sons are lucky, too. With Alex, they have another uncle who loves them, gives them advice, and gets firm with them when they need it.  Although they are grown now, they still recognize that Alex’s wisdom and experience are valid and come from a place of love and respect for them as his nephews.  The same goes for Doug’s children, my niece Katrina and my nephew Kenneth. No surprise that they are sometimes spoiled by their Uncle Alex, but he does a good job of keeping it all in balance.
            To give you an idea of how close-knit our extended family is, even my mother-in law Evelyn is close to Alex with whom she shares a love of cooking and gardening.  She enjoys our Christmas celebrations at their completely decorated home so much, saying it’s like a fairyland and she can’t imagine how we would ever be able to do it as well ourselves. My husband Randy enjoys having another brother-in-law and says he doesn’t know how anything would be the same if we have to lose Alex.  My other brother-in-law, Wayne and his partner (who is also named Wayne) Alex shares music, do-it-yourself projects, and love of food.
When I think of how Alex has become central to our family, the hardest part is remembering how important he became to my late father, David.  When my mother passed away in 1994, my parents had been happily married for 42 years.  When his own health started declining, dad still wanted to be as independent as possible so Doug and Alex found him an apartment close to where they lived at the time.  With Doug often traveling for work, Alex was there whenever dad needed any assistance, needed to be accompanied to medical appointments, help with groceries, re-filling prescriptions, or even to have  a light bulb changed.  Dad adored Alex, and Alex certainly cared for him as though he was his own father. Dad was so grateful for Alex’s generous spirit; Alex could always get him laughing and feeling better. Many times dad said to me how much it meant to him that Alex made Doug so happy and was such a wonderful person.
Even after my father’s death in March 2008, Alex’s compassion was central to our family’s ability to cope with ou loss. Alex kept us all going, helped to clear out his apartment, and supported us all through our shared grief till we could regain some balance.
Alex and his step-daughter, Katie

Alex and Doug built a successful pet grooming business, which was the direct result of the long hours that Alex worked and his careful skill.  Over the years, this business employed my nephew Kenneth and his girlfriend Jordan who were unable to find jobs in the depressed job market in California. Kenneth was grateful to his stepfather, Alex, not only for the job but also because it gave them a chance to strengthen their already close bond.

Of course, if Alex is deported the person most directly impacted will be my brother, Doug. What on earth is he to do if that happens?  Even if Doug could leave the United States and move to Venezuela to live with Alex (which is not possible under Venezuelan law), Doug will be leaving behind his only sister (me), his children, his nephews, his career, his business, and his lifelong friends.  If he stays, he loses his loving husband and partner in life to whom he has committed “to death do us part.”  Doug and Alex are a happy, loving couple: an example of what marriage should be.  I cannot even imagine their life if this deportation is carried out: does Doug fly back & forth to visit his own husband and hope the Venezuelan government doesn’t refuse him entry or exit?  Venezuela can be a dangerous unfriendly place for anyone known as a homosexual.  Does Doug put himself at risk as a gay man and as an American by traveling to that country?  Do they face a separation of 10 years?  What married couple could survive that separation?  How could our extended family’s love and support ever be enough for Doug & Alex if our government tears them apart only because it refuses to recognizes their marriage?

 Our love for Alex has no limit. Alex shares the language, customs and upbringing of his youth with us and spares no effort at celebrating the holidays and birthdays in our family. He is generous to a fault.  He is a wonderful guy to be around and anyone who is around him is better for it.  None of us who know him can imagine what it would be like to live without Alex if he is deported.

The federal government is tearing apart this American family: my middle aged sibling will lose his spouse, and we all stand with him, including my senior citizen mother-in-law; my husband, his brother and his brother’s partner; my grown sons (Alex’s nephews); and my niece and nephews (Alex’s stepchildren).
As a family we are committed to fighting DOMA and stopping this deportation.
Nothing is more American than standing up for freedom and equality.  The Fourth of July and what it stands for will remain forever changed for my entire family and myself until DOMA has been repealed or struck down and all DOMA deportations have stopped.
Join Doug & Alex and their many supporters who will protest Alex’s deportation on Wednesday July 13 at 7:30 a.m. at San Francisco Immigration Court (120 Montgomery Street). For more information see this Facebook event page.

PROTEST DOMA DEPORTATION! Save Doug & Alex’s Marriage, Rally at San Francisco Immigration Court July 13

GetEqual, Marriage Equality USA, Out4Immigration, Immigration Equality & Stop The Deportations Join Forces: Keep Doug & Alex From Being Torn Apart by DOMA

Check out GetEqual‘s website, sign our petition to the President and learn more about our protest scheduled for 7:30 a.m. on July 13 in front of the San Francisco Immigration Court. Other organizations that have signed on to this action include Love, Honor, Cherish, National Center for Lesbian Rights and Equality California.

Doug & Alex Face DOMA Deportation in Six Days! Help Stop The Obama Administration From Tearing Apart This Family

Read “California Couple Fights Deportation,” by the Bay Area Reporter.

Sign our petition to help us stop this DOMA deportation.

CNN Interviews Josh & Henry About Their Historic Victory After ICE Closed Deportation Proceedings in June

Good News For Rodrigo & Edwin: Baltimore Immigration Judge Re-Opens Proceedings, Cancelling Order of Removal

Earlier this year, in a cliff-hanger, Rodrigo Martinez was almost taken into custody and deported to El Salvador. Now, in the first case of its kind involving a married binational couple, an Immigration Judge has reversed her own deportation order in order to give both the DHS and the couple an opportunity to achieve a just outcome, and explicitly to focus on DOMA-related immigration issues. Never before has a binational couple won the re-opening of proceedings on the initiative of an Immigration Judge to address a DOMA deportation.

Edwin and Rodrigo, on vacation this week with their family in Delaware, celebrated the news
that the Order of Deportation against Rodrigo had been cancelled by the Immigration Judge

Rodrigo Martinez and Edwin Echegoyen, a married binational couple, have been fighting for the simple right to live together in this country since 2002. After years of battling the system and exhausting all appeals, they lost. Rodrigo was ordered deported. Determined to stay together, Rodrigo did not leave the U.S. and the couple continued to fight.  They knew that one day the Immigration and Customs Enforcement officers would come looking for Rodrigo, but they were not willing to give up, even against such overwhelming odds.

Finally in mid-February 2011, it happened. DHS notified Edwin that they planned to deport Rodrigo by March 9.  Rodrigo and Edwin immediately contacted Stop The Deportations and joined our campaign.  Then, on February 23, the President and Attorney General announced that they would no longer defend DOMA because they had determined that it was unconstitutional.  After 8 years together, Rodrigo and Edwin married on March 1 and demanded that the U.S. government respect their marriage by putting any deportation action against Rodrigo on hold. This effort was temporarily successful at stopping the physical deportation of Rodrigo on March 9 and it paved the way for the major development detailed below that brings new hope to this couple that their battle to stay together might finally be over.

Today we can share with you the news that Baltimore Immigration Judge Lisa Dornell has ordered that Rodrigo’s case be re-opened. In doing so, the judge has canceled the deportation order that had been entered against him in November 2008. Instead he will return to court on September 12, 2011 for re-opened proceedings.

Judge Dornell, who had ordered Rodrigo deported in 2008, has now decided, on her own accord, that it is “in the interest of justice” to re-open proceedings and to give Rodrigo another opportunity to win protection from deportation. Specifically, Judge Dornell has re-opened proceedings (1) to determine whether Rodrigo is eligible for protection from deportation because of country conditions in El Salvador for gay men and (2) to determine the relevance, to this case, of any change in policy or law impacting married gay binational couples with pending green card petitions.

In a footnote the Judge also advised the parties to be prepared to address the DOMA immigration issues

Because Rodrigo was ordered deported in 2008, this action by the Immigration Judge is a tremendous victory.  This is the first time that efforts by Stop The Deportations have succeeded in reversing a final order of removal and re-opening proceedings.

Brief History of This Case

Last March Edwin Echegoyen was ordered to surrender his husband, Rodrigo Martinez, to the Department of Homeland Security on March 9, so that they could execute an outstanding final Removal Order against him. Edwin was facing certain deportation to El Salvador. As readers of this blog may recall, we stopped that deportation with a multi-pronged advocacy campaign focusing on Maryland’s two U.S. Senators and the couple’s represenative in Congresss, Chris Von Hollen. We also reached out to the Deportation and Removal Branch and gave them ample opportunity to review the facts of this case. Edwin and Rodrigo have been together for 8 years. Days after the President announced that he would no longer defend DOMA because he had determined that it was unconstitutional, Edwin and Rodrigo traveled to Washington DC from their house is in a suburban Maryland county, and married across the street from the D.C. Superior Court. Edwin immediately filed a “green card” petition for Rodrigo on the basis of their marriage. We worked to persuade the Deportation and Removal Branch in Baltimore to rescind the Surrender Notice, but failed. DHS required that Rodrigo surrender and would not tell us in advance how they would decide this case. The media was tremendously helpful in bringing to a wider audience the plight of a married binational couple bring torn apart by a DOMA deportation. Rodrigo and Edwin went to the Federal Building that morning with a local television news crew and none of us knew whether he would be permitted to leave or if he would be taken into custody. We were all able to breathe a sigh of relief and celebrate another small victory when Rodrigo emerged safely, given the right to stay in the United States with an order of supervision. We filed a Motion to Reopen proceedings on the basis of worsening conditions in El Salvador for gay men, and on the basis that circumstances had changed because of his marriage to his U.S. citizen husband, Edwin.

On March 7, the same Immigration Judge ordered a “stay of removal” temporarily preventing the Department of Homeland Security from carrying out the existing “final removal order.” Now, almost four months later, the Immigration Judge has wiped that existing final removal order from the books. Rodrigo was ordered deported in 2008, but this move effectively cancels that order, and replaces it with new proceedings and a new day in court that will allow Rodrigo and Edwin to continue the fight for full equality and work with Immigration and Customs Enforcement attorneys to achieve the outcome that best protects them in the short term.

Coming on the heels of Josh and Henry’s victory last week, this news is cause for celebration. It involves a far more complicated procedural posture than our previous cases and the unprecedented action by the Immigration Judge to reverse herself by re-opening the case demonstrates that fighting DOMA in Immigration Court and in the court of public opinion is yielding important incremental victories on the way to full equality.

Join us in congratulating Rodrigo and Edwin as they now look forward to finally putting this entire matter to rest beginning with a status hearing on September 12, 2011.

Chris Geidner writing at Metro Weekly reports on today’s news and draws connections between developments for binational married couples fighting DOMA and the administration’s surprise 31-page filing against DOMA (and against Congress’s own attorneys) in support of the plaintiff in the Golinski case on Friday. See: “Interest of Justice” Leads Immigration Judge To Reopen Case, Ask About “Same-Sex Spouses” and Visas.

CNN en Español Interviews Josh & Henry About Their Historic Victory After ICE Closes Deportation Proceedings

May 9, 2011

April 28, 2011

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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.