Donald & Arthur: Together for 8 Years, Married Florida Couple Receives Notice of Deportation Proceedings

Donald and Arthur will appear in Immigration Court in Miami on July 14
for a deportation hearing. Please help us save their marriage!

Arthur and I met just after he had lost someone very important in his life. I was a shopkeeper, and later the assistant manager for a video and clothing store where Arthur shopped for music primarily. At that same time I was working part time as the secretary of The Episcopal Church of the Intercession. I have always felt that my faith has strengthened me; it has always given me great victory over my physical health challenges and allowed me to keep my mind positive.

I held and comforted Arthur many nights in order that he might find some inner peace following the abrupt loss of a great love in his life. He was nearly inconsolable in those times. We listened to so very many great songs and mixes in those days. Arthur would help me order and choose which loud dance music and which new mixes and DJs were going to be hot that year. Together, we did everything. We realized we loved the same things. It was around about the year 2002 and I was in love with Arthur. By the next year we were boyfriends.

By this time Arthur had told me he was here on a work visa and had been on various visas at various prestigious companies. I shared with him my inner need to travel some day and also told him my ultimate vacation destination was Angel Falls in Venezuela. He lit up and told me all about it. He told me he’d seen it up close. I was so envious and this seemed so much like a match made in heaven.

We got to talking about faith and the church and my strong religious beliefs. I told Arthur I preferred that if I were to get physically or romantically involved with someone that they would share with me my strong Anglican affiliation. Arthur quickly smiled and beamed and shouted proudly he is an Anglican. I had managed to find the best person on the planet! I had found a passionate and glorious gift from God! He’s all I ever wanted!

Getting Married on March 10, 2011 in Connecticut

 

 

When we were able to afford it, right away, Arthur and I rented a car and drove that car all the way to New Haven, Connecticut, where Arthur used to live. We loved driving up there together with all the music we so enjoyed picking out together all these years. Who could have predicted as we were picking out music for the store I was working for, we were actually creating, and laying the foundations upon which Arthur and I would be building a positive, new kind of freedom in our lives! We made great, passionate and joyous memories all the way up to Connecticut! Arthur and I got married just before my birthday, which was on March 10th. My sister Christine and her husband Jeffrey drove from Ohio to witness and take part in our marriage. This marriage gives each of them a new family member. Arthur will do his best to be a great brother-in-law and He’s going to be an even better Uncle to Jed, Sierrah, and my perfect little nephew Noah. My sister’s already explained “gay” to her children and Noah and Jed think I’m a very cool uncle (of course!) After the justice of the peace, Barbara Canali, officially declared us married and my mind soared. The details and amount of time that passed between that special, perfect moment and the moments on the road driving to our honeymoon at the Doubletree are quite a blur. The destination hotel, the Doubletree, in Orlando was the perfect choice.

Arthur and I had the pleasant surprise of being upgraded to a suite at the Doubletree when I told the desk person we had just gotten married in Connecticut. The staff was very happy to congratulate us and I felt so very welcome. Being accepted as a married couple is enough to elicit tears from me. Arthur and I proudly enjoyed our stay at the hotel and we spent two days in Walt Disney World where we were accepted as a couple without judgment.

On President’s Day, I wrote an e-mail to the President. I told him that in March I would be marrying my boyfriend of eight years in Connecticut. I wrote that it would be a slap in the face for the federal government to then turn around and defend the Defense of Marriage act right after I got married. Two days later, the New York Times reported that President Obama would not defend DOMA in federal court cases because he believed it was unconstitutional. For a moment I felt my President, and my Attorney General had taken up a battle worth having. The government seemed to be making a righteous decision.

A few days after we got home from our wedding trip we got a letter in the mail. The letter from the Department of Homeland Security said Arthur had overstayed his visa and he was being placed in removal proceedings. Arthur’s deportation hearing is now scheduled for July 14. Arthur can stay here when the courts recognize he has a family member in the United States of America. According to my father, my sister, my husband, the State of Connecticut, and me I am his family. The Defense of Marriage Act is not doing anything; but attempting to tear my marriage apart.

Congressman Rush Holt of NJ has written to ask Janet Napolitano, The Secretary of The Department of Homeland Security for a moratorium on deportations of spouses of gay and lesbian Americans until the Federal Defense of Marriage Act’s fate has been decided. (She has the power to do this, as we saw in 2009 when she halted deportations of widows and widowers of U.S. citizens while Congress passed a legislative fix.)

If I could have one wish granted by my elected representatives it would be that our Congresswoman, Debbie Wasserman-Schultz, who is now the incoming Chair of the Democratic National Committee, and our Senators, Marco Rubio and Senator Bill Nelson, would join their colleagues in calling on the Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder to put all cases involving legally married same-sex couples on an indefinite “pause,” or put a moratorium on deportations of spouses of gay and lesbian Americans, at least until the courts make a final decision on the Defense of Marriage Act’s constitutionality or it’s repealed by Congress. If this doesn’t happen and legally married same sex spouses like Arthur are deported, they will be ineligible for re-entry for ten years. That’s unreasonable! It’s unconscionable!

We can easily contact our representatives in Congress. Just call Capitol Hill Switchboard 202-224-3121. You just call three times, twice you ask for your Senator (you have two) then you ask for your congressional representative. You just say hello, my name is ___, I live (give ‘em your address where you live). Tell them you voted for them (if true) and inform them that the 65 members of the House and Senate have written to Napolitano and Holder seeking a stop on deportations of married, same-sex bi-national couples until a the fate of the Defense of Marriage Act has been determined. We must act together. We can stop the deportations of our spouses if we stand together. Even before DOMA is repealed we have the tremendous power of our personal stories to keep it from destroying our lives.

There is only one courtroom that matters in 2011, and that is the court of public opinion. We must mobilize and change the hearts of minds of the American people and our elected representatives and ultimately this administration. Join us in this battle. Help us save our marriage and defeat DOMA.

OutFront Colorado: DOMA Separates Inger & Philippa

Lives on hold: Lesbian couple, one of thousands, torn apart by DOMA, immigration policy
By Nic Garcia

Philippa, a British woman, and her partner, Coloradan Inger Knudson, embrace each other. The two haven’t seen each other in nearly eight months.

When Coloradan Inger Knudson committed her life to Philippa, an English woman, atop Lookout Mountain in 2009, the last thing she feared was her family would be ripped apart by the United States government.

Philippa, who asked her last name not to be used out of fear of legal repercussions, packed up her life in the UK and was set to help Knudson raise her daughter in Colorado. But five days before she was to leave the UK in 2009 — information the couple had been given, information they believed would lead them to a permanent fix to their immigration troubles was wrong. After being in the US for 89 days, Philippa returned to the United Kingdom until the couple could find another path to be together.

Today, they communicate by email, Web cam and an Internet phone service. Often times, they spend more time trying to establish a workable connection then actually chatting about their day. And when they finally get a connection, there’s that seven hour time difference. Philippa has usually ended her work day – she has two jobs – and Knudson is eating lunch, studying for her new career as a massage therapist.

“This is our life,” Knudson said.

“People don’t realize, they think it’s the distance,” Philippa echoes. “But it’s also time. I go through my morning, my day until 3 or 4 in the afternoon sometimes before we talk. We both have dual clocks on our cell phone so we know if it’s too early to call.”

Philippa is quick to point out their immigration troubles is just a single case of discrimination by the federal government. She pointed out there are more than 1,000 rights tax-paying gay and lesbian couples are denied.

“I don’t understand any of it,” she said. “It’s outright discrimination, immigration or not. I’m (eventually) going to be moving to a country, where, for the last three years I’ve been treated like a criminal.”

What keeps them 5,000 miles apart is the national Defense of Marriage Act that defines marriage between a man and a woman at the federal level…”

Knudson said she would move to England if she could. But because her daughter’s father lives in Colorado, she can’t. So, she said, it’s a matter of time before either DOMA is repealed, the UAFA is passed or her daughter is old enough.

“I met somebody I share an emotional bond with, an intellectual bond with,” Knudson said about Philippa. “We laugh, she’s a really good person. I found someone I could believe in. I’ve never felt so valued in a relationship. I’ve never felt so safe in a relationship.”

Francisco & Bert: Married and Living in Exile in Stockholm for 12 Years With No End in Sight

I’m one of the lucky ones. I live in a country, Sweden, where as the American half of a binational gay couple, I was welcomed with open arms and got a green card with a minimum of fuss nearly 12 years ago. So my husband, Francisco, and I haven’t had to suffer any separation from each other except for the few months it took to process my papers back in 1998. Sweden has had a partnership law since 1995 which in 2009 was merged into the marriage law, erasing any distinction between gays and straights. And while just being part of a gay couple got me my green card, after three years of officially being a couple, I was entitled to citizenship, which I applied for and received.

But while Francisco and I have a good life in Sweden, our marriage isn’t recognized in the United States because of the Defense of Marriage Act. That means that we do not actually have a choice but to live in Sweden. While we recognize our good fortune that we at least have the right to live together here, it can’t be denied that we were forced to live here by discriminatory American laws.

And we’re not accorded the respect that straight couples get. For instance, when we go through passport control each time we pass through O’Hare on our yearly visits to the U.S., it’s always a minor trauma. Our worst experience was several years ago when we had the audacity to go up as a couple and present our passports together. The young woman behind the counter – she couldn’t have been more than 25 – looked quizzically at our two passports and asked “Why are you up here together?” To which we replied, “We’re married, we’re family.” Which was obviously not what she wanted to hear. She became visibly upset, turning red and angrily telling us “don’t you ever come up together again. You’re not married here, we don’t allow that in this country.” Shaken, we walked to the baggage claim to get our bags. “And they call America the home of the free?” Francisco said to me. “I don’t think I want to come back again.”

And while it may seem like merely an insult and a minor convenience, it’s actually more than that. Immigration control officers are the police, and they have an extraordinary amount of power when it comes to dealing with non-Americans entering the country. Francisco essentially has no rights or legal connection to the U.S., and one certainly gets the feeling that merely complaining about being humiliated at passport control could get him sent packing back to Sweden on the next plane. There is no reason we should ever be treated this way while each year thousands of green cards are given to the spouses of American citizens. Francisco and I want to be free to decide to live in the United States at some point in the future. As an American citizen, if I choose to return, I believe Francisco should have the right to live in the U.S. as my spouse, just like any straight couple. This is a simple matter of human rights. This is just one reason why the Defense of Marriage Act has to go. It treats some married American citizens different than others. That has to end.

Victory for Josh & Henry: New York Times Coverage

Fred R Conrad/The New York Times

Judge Gives Immigrant in Same-Sex Marriage a Reprieve From Deportation

By Julia Preston,  New York Times

An immigration judge in Newark on Friday suspended the deportation of a Venezuelan man who is married to an American man, responding to an unusual signal this week from the Obama administration that it is exploring legal avenues for recognizing same-sex marriages in immigration cases.The Venezuelan, Henry Velandia, had been awaiting the hearing with dread, since immigration authorities had said it was the last step before his deportation. Mr. Velandia, a dancer, was legally married last year in Connecticut to Josh Vandiver, a graduate student at Princeton. Mr. Velandia was denied legal residency as Mr. Vandiver’s spouse because under a federal law, the Defense of Marriage Act, immigration authorities do not recognize same-sex marriage.

On Thursday, Attorney General Eric H. Holder Jr. intervened in a different immigration case involving a same-sex couple, suspending the deportation of a man from Ireland and sending his case back to the immigration appeals court, asking it to consider several possible grounds on which the Irishman might qualify for legal residency.

Citing the move by the attorney general, Judge Alberto J. Riefkohl of immigration court in Newark postponed Mr. Velandia’s deportation until December at the earliest. The judge said he wanted to allow time for the attorney general and the appeals court to work out whether a gay partner might be eligible under some circumstances for residency.

Gay rights advocates said the back-to-back developments were an important sign that the Obama administration was working to bring consistency to its policy on same-sex marriage. The administration determined in February that the Defense of Marriage Act discriminates unconstitutionally against gay people.

Mr. Holder said then that the administration would no longer defend the act, also known as DOMA, in the courts, but would continue to enforce it until the courts reached a decision on whether it was constitutional.

Rachel B. Tiven, the executive director of Immigration Equality, a legal group that advocates for gay immigrants, said the change of course in the two cases had sent “a signal of openness” from the administration.

“Something is shifting and opening, and change is on the horizon,” Ms. Tiven said.

Supporters of the Defense of Marriage Act, which defines marriage for the purposes of federal law as between a man and a woman, reacted strongly to Mr. Holder’s action.

Representative Lamar Smith of Texas, the Republican who is chairman of the House Judiciary Committee, said the attorney general had “instructed an immigration court to ignore DOMA in future rulings.”

Mr. Smith said the administration was “coming dangerously close to giving the impression they don’t care what the law says.”

In Newark, Mr. Velandia and Mr. Vandiver were mainly relieved that they had avoided separation. “We know this is just a reprieve,” Mr. Vandiver said. “But every day we can have together is invaluable.”

Mr. Velandia, 27, is a salsa dancer who came to the United States in 2002 and failed in his effort to gain an employment visa. He has become a poster case for gay immigrants across the country, as he and Mr. Vandiver, 29, gathered thousands of signatures on an online petition asking Janet Napolitano, the secretary of homeland security, to suspend deportations for all same-sex spouses.

Before the hearing, dozens of gay rights protesters demonstrated on the sidewalk in front of the federal building in Newark where the immigration court is housed.

Judge Riefkohl noted in the hearing that Mr. Velandia and Mr. Vandiver were a married couple, and he said he wanted to wait for the outcome of the immigration appeals court’s reconsideration of the case of the Irish immigrant.

“We won the victory we were looking for,” said Lavi Soloway, the lawyer for Mr. Velandia and Mr. Vandiver. “The government acknowledged that Henry’s removal was no longer a foregone conclusion.”

The Irishman, Paul Wilson Dorman, came to the United States in 1996 and stayed beyond the term of his visa. But in a potentially important wrinkle, Mr. Dorman joined with an American citizen in June 2009 in a civil union — not a marriage — in New Jersey. That state does not offer same-sex marriage.

His lawyer, Nicholas J. Mundy, said the courts had denied his partner’s petition for a permanent resident visa for Mr. Dorman. But Mr. Holder asked the immigration appeals court to re-examine the case to determine whether Mr. Dorman might qualify for the visa by virtue of his civil union.

Mr. Mundy said he was optimistic about the significance for gay immigrants of Mr. Holder’s action. “It is an extraordinary measure,” he said, “and it sends a clear message that the Obama administration intends to do away with DOMA in its entirety.”

Ms. Tiven, of Immigration Equality, was more cautious. “This is not yet the solution that thousands of families clearly need,” she said.

Michael Denied Entry to the U.S. Today, Craig Will Move to Canada So They Can Be Together

Michael and Craig have been together for five years. They married in Canada in November 2006.

Five years ago I met a wonderful man online. For almost a year we got to know each other by communicating on line and by phone.  At a certain point, I felt ready to meet him and see what would happen. I was in Vancouver, Canada. He was in South Bend, Indiana.

I landed in Chicago and waited for close to an hour for Craig to show up. I was looking forward to meeting him in person. I was also second-guessing myself. I thought to myself, “What have I done?”

All my anxiety melted away as soon as I got into his car and saw his smile. The 3-hour drive back to his house was the best 3-hour drive I have ever experienced.  We talked as if we had never been apart and all my fears of meeting this man went away. On that trip I asked Craig to marry me.  We planned for a wedding that could accomodate our friends and family. (I wanted to elope to Niagara Falls, but we decided to wait and bring the most important people in our lives together for the occasion.)

A few months later guests arrived in Vancouver for our wedding. It was November 2006. Craig comes from a very devote Mormon family, so only one of his brothers came up for the wedding. It was a beautiful and memorable day for us.

For the past five years I have spent a lot of time in South Bend helping Craig to build a home and a life together for us both. I would travel back to Canada routinely so I would not be “illegal” in the United States. Finally, when it was clear we could not make our future in South Bend, we planned to uproot Craig and start again in Canada. We were just waiting for the day that our house would sell in Indiana and Craig could move to Canada. (Craig has achieved Canadian permanent residence status and is able to work and live in Canada on the basis of his marriage to me.)  My very last attempt to re-enter the U.S. was very difficult.  The Customs and Border Protection wanted the proof of “ties” to Canada—a normal requirement for all visitors, asked more typically of frequent visitors—as they viewed me as a potential overstay risk.  I would up in Canada for another three months collecting all the evidence just to request admission for another visit. Today, when I trying to cross into the United States, Customs and Border Protection told me that all the documentation I had gathered was not sufficient. They advised me that if I tried one more time to come into the U.S. as a visitor without stronger proof of my intention to return home to Canada that I would be denied entry for 5 years. So today Craig is in Indiana packing our lives up, getting ready to say goodbye to his friends and family so we can be together and enjoy our life and our marriage. This is why we need DOMA repealed as quickly as possible. Until our marriage is considered equal under the law, the Uniting American Families Act, remains the only other solution. We will continue to support all efforts to end discrimination against our marriage that has forced Craig and me to leave our life in Indiana and move to Canada.  I hope you will help us end the inequality that separates and exiles so many gay binational couples.

Thank you for listening, please feel free to share my story with anyone that will listen.

UPDATE: Carrie & Claire, Married for 5 Years, Struggle to Share Three Months Together in One Country

Carrie and Claire at their September 2007 wedding

At the time of our last post, November 2010, Claire was unemployed and in the UK, searching for any work with no success. In December 2010, she ran across a position that looked and sounded perfect.
Claire did beautifully in the interview and felt really good about her chances. Sadly, the position was offered to someone else. Claire was feeling defeated before this, she was gutted by not getting the job and felt completely alone with me on the other side of the world. She called to tell me about the job and broke down (not something my wife does). We had no idea when we would be together again, Christmas was close and we felt every mile of the distance between us. Claire asked me to consider traveling to the UK to be there for her. The decision was easy to make, but the many details to make it happen weren’t so easy.
Continue reading here.

Victory for Josh & Henry: Judge Halts Deportation Proceedings, Citing Pending Marriage-Based Petition and Recent Decision by Attorney General

On Friday, May 6, an immigration judge in Newark, NJ, issued a ruling on the deportation of Henry Velandia, a Venezuelan citizen legally married in 2010 to Josh Vandiver, an American citizen. Immigration Judge Alberto Riefkohl ordered that deportation proceedings against Henry Velandia be put on hold, granting an adjournment until December, thereby temporarily stopping the process of his deportation to his native Venezuela. Immigration and Customs Enforcement Assistant Chief Counsel David Cheng, the attorney prosecuting the case on behalf of the Department of Homeland Security, agreed to the adjournment.

The Immigration Judge adjourned deportation proceedings against Henry Velandia on the grounds that the marriage-based green card petition filed by Joshua Vandiver was still pending and because of the potential implications of a move by Attorney General Eric Holder in a related case that may signal a shift in the Administration’s interpretation of the law as it concerns same-sex bi-national couples. Yesterday, the Attorney General intervened in the case of another gay bi-national couple in New Jersey who had sought recognition of their civil union for immigration purposes. That couple lost their case on appeal at Board of Immigration Appeals (BIA) and had filed a lawsuit in the Third Circuit Court of Appeals. In an extraordinary move, the Attorney General “vacated,” or set aside, the decision by the BIA and directed the BIA to issue a new opinion focusing on whether a same-sex partner could qualify as a spouse under the Immigration and Nationality Act. This is the first time an Attorney General has used the power of review of the Board of Immigration Appeals to intervene on behalf of a same-sex couples. The specific instructions given to the BIA suggest that the Attorney General is considering whether the Defense of Marriage Act (DOMA) is unconstitutional when applied against same-sex couples in the immigration context.

Despite legally marrying in Connecticut in August 2010, Vandiver (a Ph.D. student at Princeton University) is currently prohibited from sponsoring Velandia (a salsa dancer, instructor, and founder of a Princeton-based dance studio) for a green card, unlike straight married couples in the same situation. Due to the Defense of Marriage Act (DOMA), the federal government does not recognize same-sex marriages, even if those marriages were performed in states that do legally recognize those unions.

Velandia’s husband, Josh Vandiver, had filed a marriage-based “alien relative” petition on his behalf in 2010 but it was denied in January on the sole grounds that their marriage, though legal in the state of Connecticut, was not recognized for immigration law purposes because of the Defense of Marriage Act (DOMA). After the President announced in February that he would no longer defend DOMA in federal court challenges because he believed the law was unconstitutional, Vandiver re-filed the marriage-based petition on behalf of his husband. That petition remains pending with U.S. Citizenship and Immigration Services and has not been denied.

Statement by Lavi Soloway, the couple’s lawyer, co-founder of StopTheDeportations.com, and co-founder of Immigration Equality:

“Today we have won an important victory by stopping the deportation of Henry Velandia. The Immigration Judge has demonstrated that it is appropriate to proceed with caution when a marriage-based green card petition is pending precisely because the law and policy impacting lesbian and gay bi-national couples is in a state of flux. The Immigration Judge has acted to protect Josh and Henry from being torn apart at a time when new developments suggest that potential solutions for bi-national same-sex couples may be on the horizon. However, the adjournment granted today only temporarily postpones removal proceedings. The Administration must act now to institute a moratorium on all deportations of spouses of gay and lesbian Americans to ensure that all same-sex bi-national couples are protected until the fate of DOMA is determined by Congress or the Supreme Court.”

Statement by Josh Vandiver:

“We thank the Immigration Judge for looking carefully at our case and seeing us for who we are: a loving, married couple that wants only to be allowed to build a future together like any other couple. The judge made the right decision, an important decision: he recognized our relationship and he protected us by postponing these proceedings today and stopping Henry’s deportation from happening.

This is only a temporary reprieve, however. We have to go back into this courtroom again a few months from now. Meanwhile, Henry’s deportation still looms over us. We are breathing a sigh of relief that we will be able to live in peace for a few more months, now that the immediate threat of deportation has been removed. We treasure every day we have together. But couples like us are still being torn apart every day. Every day, spouses of gay and lesbian Americans are facing deportation and denied access to green cards only because of the Defense of Marriage Act.

That’s why, after a deep breath, we are headed back to the trenches. With our allies, we will continue to urge the President to instruct Secretary Napolitano to issue a moratorium on the deportation of ALL spouses of gay and lesbian Americans. Until then, our marriage is still in danger.”

See also New York Times, “Judge Gives Immigrant in Same-Sex Marriage a Reprieve From Deportation,” May 6, 2011.

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.

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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.