Arthur and Christopher Celebrate 14 Years Together, 10,000 Miles Apart, Now Separated by a 10-Year Ban

One of the last times this couple was together. DOMA is now keeping them apart.

Editor’s note: This story is extraordinarily important because it serves as a reminder of the cruel realities that befall many binational couples, not only because of the discrimination against LGBT families in our immigration law, but because of the lack of access to good immigration lawyers and the complexity and lack of flexibility of our laws. As you will learn below, Arthur and Chris have been forced apart because Chris has been barred from the United States for 10 years after overstaying his status as a visitor by 13 months.  There is a waiver of the overstay ban built into our laws for individuals who can show hardship to their American citizen spouse, but as long as Arthur and Chris cannot be recognized under federal law as spouses, Chris will be forced to live in Australia He will continue to be banished 10,000 miles away from his life-partner and soul mate of 14 years until the year 2019 simply because he took the wrong advice and departed the U.S. believing that he would be allowed to return again as a visitor.  Christopher sent us this story.

Arthur is an American citizen. He is 51 years old and lives in Connecticut.  I am a 47 year old Australian citizen, and as will be come clear from our story, I am stuck in Australia. On April 21st Arthur and I will celebrate our 14 anniversary together although we will not physically be in the same place. It will not be much of a celebration. I have been back in Australia and have a 10 year entry ban placed against me.

Our troubles began after our immigration attorney advised me that I could stay in the USA with out penalty as long as I didn’t work. (He now denies this.) After finding out his advice was incorrect, I returned to Australia as I didn’t want to be “illegal.” This proved to be the worst decision I have ever made.  How did I ever come to make such a calculated mistake? Probably like most binational gay couples we struggled with the goals (often competing) of having as much precious time as possible together, but also avoiding staying illegally and putting me, the foreign partner, at risk of deportation.  The idea that my illegal status could become known to the authorities loomed large for us, and caused significant anxiety and stress. I was scared of being deported.  At that time, the town of New Haven, CT started implementing policies to discover illegal immigrants and turn them over to the Immigration Service.  Near to our home in New Milford CT, the police in Danbury were also engaged in a similar effort. Everywhere we turned it seemed that we faced no good choices. No one could give us any direction so we had to decide for ourselves what came down to a choice between all bad options, and pick one. Of course, in departing I thought I was doing the right thing, preserving my ability to come back again as a visitor in the future. I had never heard of the 10-year bar for individuals who had overstayed their permitted period of entry.

Arthur &Christopher; with Christopher’s 96-year old grandmother on Arthur’s last trip to Australia

Since my return to Australia, Arthur and I have both suffered through bouts of depression and despair. At this moment, as our anniversary nears, Arthur is having an extremely hard time which in turn is killing me as I cannot be there to comfort him. We have made numerous attempts to gain assistance from elected officials but have had zero luck. In fact, out of thirty-one 6-page letters I wrote from here only a single reply was ever received. That reply came from Senator Gillibrand in NY who said she was unable to do anything to help in the situation but forwarded the letter to Senator Lieberman (since Arthur is a Connecticut resident). I had already written his office, and had received no response. The rest have been ignored. I contacted Immigration Equality and the attorney there kindly suggested that Arthur send the letters seeking assistance from the perspective of the U.S. citizen. We did this; we also asked family and friends to write support letters attesting to my good moral character. We sent out Arthur’s 3-page letter along with those from our family and friends but so far, no reply.

We have come to realize that we are trying to move a mountain. All we are asking for is the penalty of a ten year ban to be removed so I can travel as a tourist and at least visit Arthur and those I consider my family.  However, the 10-year bar is a almost immovable barrier. If I were applying for a green card on the basis of my marriage to Arthur I could seek a hardship waiver, but of course DOMA is standing in our way.  The ten year bar kicked in as soon as I left because I had overstayed my last entry as a visitor by 13 months. Had I overstayed for a period between 180 and 365 days the penalty would only be three years.  So we are now asking that given that I exceeded the 365 day limit by only a month, if perhaps the penalty could be reduced to 3 years. That would in theory make me eligible to return and see Arthur again in 2012. Again we realize that these laws have not been written with any flexibility. We have been reduced to begging.

While I have been in Australia I have written to the U.S. Ambassador in Sydney asking for the removal of the 10-year bar,  but that was denied by one of his staff. My father also made a second attempt on my behalf but again, it was no use.  After arriving back here I sought out some advice from the US Consulate in Sydney. After telling them what had happened in the USA and that I only “overstayed” because of the mistaken advice given to me by my attorney, I was told to apply for a visitor visa.  The information officer was overly optimistic; he felt that I wouldn’t have a problem because I departed the USA on my own accord and only overstayed because of the advice given.  This was dead wrong. Unfortunately, I got my hopes up. I made the appointment as per the instructions, traveled 5 hours to attend the interview only to be denied because of the 10-year bar in less than 2 minutes. Absolutely devastated I had to drive another 5 hours home.

I am sure all who are reading this understand that my life is with Arthur and his life is with me. I belong with him and his family who treat me as they would any member of the family. We are a family. My friends are there, it is home to me.

There is only one way for this to end. The federal government has to stop tearing apart gay couples. This situation is pure madness. There would never have been any overstay at all if Arthur and I could have married and obtained a green card for me on the basis of that marriage. The Defense of Marriage Act has been in existence almost the entire duration of our relationship. We have waited and hoped that a day would come when couples like us would be treated equally.  We have been forced apart and it is destroying our lives and breaking our hearts. All our future hopes and dreams have been put on hold. I cannot imagine that I will not be able to see Arthur again until he is almost 60.  How can this government allow us to lose 10 years of our lives. Everyone reading this can do something to bring an end to this. What has happened to us should never happen to any other couple.

Together For Nine Years, Minnesota Gay Couple Lives in Fear of Deportation Because of DOMA

I no longer remember exactly when it happened.  One day, while I was in college in the late 1990s I first heard about the inability of American citizens to sponsor their partners for green cards. recall exactly what my reaction was: “Well, I’ll never have to worry about that!”

I grew up in rural North Dakota. The thought of meeting and falling in love with anyone who was not a citizen did not even cross my mind at the time, it was such a remote possibility. I moved to the “big city” of Minneapolis in 2001 with the intention of finding a place that was more comfortable for me as a gay man. I didn’t want to live my whole life in North Dakota.

I met José in 2002 at a friend’s birthday party. I remember seeing him sitting on the couch, all by himself, a flurry of activity around him. He was cute, but obviously shy, so I sat down next to him and we just talked. I think we both felt out of place. He was the quiet type and I was new to the gay scene in the big city. We met by chance again soon after at a nightclub in St. Paul. I say we met, but really I just saw him from across the room and remembered how cute he was. I didn’t even say hello. My roommate and I left for another club in Minneapolis after about an hour. And sure enough, after a few hours I ran into José again. We danced all night and I jokingly accused him of following us. I didn’t know at the time that he’d become the love of my life, and that we’d spend the next 9 years together. We dated for a year, and moved in together in 2003. We have lived in the same townhouse the whole time, our cute little townhouse in the suburbs.

We are like any other couple. We have good times and bad. We fight and make up. One of the hardest times in our relationship was when I went back to school for my master’s degree in 2005. It’s a very intense 2.5-year program. I’d spend 6 hours a day in class and come home only to lock my self in the spare bedroom to study for 8 more hours. We’ve made it though some tough times. Everything we’ve gone through together is like what any other couple experiences, but we’ve also endured an extra burden in addition to the normal couple experience.

I found out that José was in the U.S. without lawful status shortly before we moved in together. I’m not sure if I knew at the time the entirety of what that meant. I told him  that I loved him no matter what, and that it didn’t matter to me. On the outside, he looked like any other person. He is Latino, and in some ways he fit right in to the diversity of the Twin Cities. He had a driver’s license. He had a steady job. I didn’t understand what it really meant to be “undocumented.”  Thinking back now, I was so young and ignorant.  I truly believed that our love was all we needed.

Nine years later, I see the impact legal status has on José and on us as a couple. There are many things we’d both like to do that we can’t. The scariest thing is the fear we live with everyday. If we are stopped, or have to deal with the authorities for any reason, it can cause panic. All it would take is for someone to ask for proof of his immigration status and our biggest nightmare would be upon us: our life as a couple could be over.

José has a job, but it isn’t the best. He is constantly ridiculed and put down there. He has been robbed at gunpoint, twice.  Because of his status he is vulnerable to those who want to take advantage of him and he is afraid to report anything to the authorities.  Every time something happens, I tell him to leave and find a different job, but it really isn’t that easy. So he stays and plods along in the same mediocre job. No health insurance. No sick time. No vacation time. Low pay. No respect. Constant insults from customers. Unrealistic managers. José is intelligent, educated and highly resourceful.  He has a business degree from Mexico, but none of that matters.  He has no opportunity for a better job because of his legal status.  Any heterosexual American in our situation would not be writing this story, or sharing photos of themselves with their faces concealed by masks.  Any heterosexual American would have simply married and sponsored their spouse. If we were heterosexual, José would have long ago had a “green card” and even U.S. citizenship.  But instead we live in a prison forced upon us by discriminatory laws.

We’ve talked about all of our options to remedy our situation. I told him that I would move to Mexico with him if he was deported.  But that option is not a good one for us. I don’t know how we would survive there, how I would work, and while Mexico City does now allow gay couples to marry, the reality is that gays are not treated well in Mexico, there is still a lot of homophobia and machismo.  As an American, I’m not convinced I could live safely there. Mexico isn’t getting any safer with the drug wars either. So we thought about Canada. That would be a better option, but not great. If José leaves the country, he is barred from returning for 10 years. And so we are trapped. His whole life is here. So immigration to Canada (if we could qualify to immigrate there!) is only an emergency option to be kept on the back burner.

As much as we live with constant anxiety and fear, we are also frustrated about our inability to plan for our future.  We are being robbed of the hopes and dreams that most couples take for granted.  As we are both getting older we would like very much like to start a family. That too is out of our grasp. We’ve thought about surrogacy, but the costs involved are staggering. Even though I have a good paying job, we’d have to use all of our savings for one round with no guarantees.  And José has no opportunity to pursue the career for which he has been educated, so he is chronically underemployed.  We have also considered adoption. We haven’t gone down that road because we were afraid we would not be approved after home visits revealed José’s immigration status.  Home studies for an adoption are understandable, but they would seal the fate of our plans to start a family. Obviously when you spend nine years as a binational couple in hiding, you aren’t going to invite someone into your home to investigate your partner’s immigration status. So we wait to start our lives as we watch our friends, straight and gay, get married and have children. It is heartbreaking. We know that years are being robbed from us by the U.S. government and the cruel discrimination imposed on me as a U.S. citizen just because I am gay.

We watched with hope in 2004 when Massachusetts became the first state to allow gay couples to marry.  We thought that perhaps it would change something in our lives. I didn’t realize the full impact of the 1996 Defense of Marriage Act (DOMA) at the time, but I sure found out. It meant that to the federal government, that even if we married, our relationship was worth less than others—nothing in fact— because we are gay. So we waited again.  We didn’t marry because like so many binational couples we were probably more scared and uninformed than anything else; we were afraid if we married this could somehow lead to José being deported. We didn’t realize that there were actually attorneys out there who specialized in LGBT immigration issues so we never got proper advice. We just postponed our plans to marry as we had postponed everything else in our lives.

We watched in 2007, when President Bush was pushing for immigration reform. We never thought we’d agree with anything President Bush had to say, but there we were, hoping and praying for reform. José would watch C-Span for hours on end. He was horrified at the hateful things some members of Congress would say on record! We were only more devastated when nothing happened.

We were both overjoyed when President Obama was elected with huge Democrat majorities in both houses. We thought for sure that our prayers had been answered. The things Obama had talked about while campaigning were music to our ears. I spent hours knocking on doors and making phone calls for Obama and Franken. When the economy crashed it seemed certain that immigration reform and gay rights legislation would no longer be a priority. Again, we felt let down.

This year however we had great cause for both excitement and disappointment as a binational couple. First came the news that the President would no longer defend the indefensible, horribly named “Defense of Marriage Act.”  We did not expect that this would result in a fast solution for us, but we were hopeful.  Then at the end of March we learned that all green card applications for same sex couples were going to be put on hold; my heart soared!  Perhaps I should have known better than to get so excited. It just mean my crash to reality would be even harder when it turned out that, in fact, they would not be put on hold. But during those few days when everything seemed possible, I started to think about all the possibilities. If José got employment authorization and legal status the constant daily fear would be gone. Maybe he could get a better job. Maybe he could go back to school. We started making plans to get married. One more step closer to equality! The joy was short lived. We were both crushed.

Perhaps one good thing came of all of the excitement and disappointment of the past few weeks; we are definitely planning on getting married. We decided to do it on our anniversary later this month.  We should be feeling happier than we do, but there is an air of caution over our heads. The lingering doubt that practically resides in the back of our minds; a little voice that constantly asks if this is really the right thing to do. Its not that we aren’t committed to each other or in love, but we constantly have to think about the legal aspect of everything we do in our lives.  We have decided that this is the right thing for us to do.

As an American citizen, soon to be married to the love of my life, I am now going to join the many other binational couples and reach out to my U.S. Senator Al Franken to urge him to call on Secretary of Department of Homeland Security Janet Napolitano to put a halt on deportations of spouses of gay Americans. After all, if the President thinks DOMA is unconstitutional it cannot be used to deport José. That minimum security is something we deserve as Americans while Congress works to repeal DOMA or lawsuits bring it to its final day of judgment in the Supreme Court. This administration must protect LGBT families, and stopping all deportations involving married binational couples is a necessary first step.  I am taking a baby step out of our self-imposed prison. I will meet with my elected officials, though José will stay at home, afraid still to “come out” as undocumented.  But I will fight the fight for equality. I hope you will join me in defeating DOMA and stopping the deportations.

The DOMA Project’s Newest Research Intern: University of Wisconsin Senior, Dario Rodriguez

Dario Rodriguez is a senior at the University of Wisconsin at Madison where he majors in Political Science (international political relations and economy) and Spanish.  He works on campus for the International Faculty Staff & Services as an assistant J-1 & H-1B visa specialist, focusing on compliance issues, presenting visa trainings and information sessions and processing applications and petitions.  In this work, Dario became familiar with related U.S. immigration regulations and procedures. We are pleased to welcome Dario to The DOMA Project as our newest research intern.

What Happened? The Confusion for Binational Couples

By Karen Ocamb
(cross posted with permission from LGBT POV and Frontiers in LA magazine)

Some good news on the immigration front on Tuesday. AP reports that Rep. Rush Holt (D -NJ) sent a letter to Department of Homeland Security Secretary Janet Napolitano on March 31 on behalf of a same sex couple who live in his district to stop Defense of Marriage Act deportation proceedings against the same-sex spouses of American citizens. Immigration attorney Lavi Soloway has more about it on his website, StopTheDeportations.

I asked Soloway to explain the roller coaster of recent events involving bi-national couples and what LGBTs can do to help. Here’s that story, cross-posted from Frontiers In LA:

Immigration Attorney Lavi Soloway Talks About the Confusion for Binational Couples

Lesbian and gay couples got one more blunt force example of how the federal government treats LGBT individuals differently from heterosexuals. This time it’s the impact on 36,000 same-sex couples (47 percent of whom have children) who are seeking the right for the foreign-born partner to legally stay in the country through a green card—a right afforded straight married couples automatically but denied same-sex couples because of the 1996 Defense of Marriage Act.

On March 22, an immigration judge in New York City granted a legally married lesbian couple a stay of their deportation hearing to allow them to pursue an immigration petition based on the fact that the U.S. Justice Department said they considered DOMA unconstitutional. That first of-its-kind decision was quickly followed by unrelated news that the U.S. Immigration Service was going to hold in “abeyance” green card cases for same-sex couples. But that was rescinded before the champagne bubbles fizzed out, leaving binational same-sex couples confused over what was going to happen next.

Frontiers asked immigration attorney Lavi Soloway to explain what’s going on. Here’s his explanation, and what you can do to help. He started by explaining that the case of the binational couple could have a ripple effect.

“All immigration judges live in the real world; and that is a world where discrimination against married gay and lesbian couples is increasingly rejected. Immigration judges make determinations on a case-by-case basis, but with the Department of Justice rejecting DOMA as unconstitutional and refusing to defend it in current and future federal court challenges, there is every reason for immigration judges to agree to adjourn deportation hearings to allow couples to fight for their marriages.”

How does the constitutionality of DOMA work here?

For the last 18 years, we have built a movement dedicated to ending discrimination against binational couples in our immigration system. … [But] there are now 100,000 same-sex couples married in this country, and polling shows that a majority of Americans oppose discrimination by the federal government against married gay and lesbian couples. Then, last summer DOMA was ruled unconstitutional by Judge Joseph Tauro in Boston in two separate cases.

We felt it was time to change the terms of the discussion. The president stated that DOMA was unfair, discriminatory and should be repealed. Increasingly, binational couples understood that it was DOMA that was preventing the federal government from giving them access to green cards.

This was most clear in deportation cases. Spouses of gay and lesbian Americans were being deported despite their legally valid marriages. These cases were the leading edge of a tremendous injustice, and demonstrated the ultimate and cruelest consequence of DOMA. … We decided to launch The DOMA Project and focus on halting deportations.

What happened with the U.S. Immigration Service holding green card cases in abeyance and then rescinding that?

Various District Offices of the USCIS (U.S. Citizenship and Immigration Services) were receiving alien relative petitions and green card applications from married gay and lesbian couples and, rather than issue denials because of DOMA, they were processing those cases and then holding off on the final decisions. This policy was reviewed by Department of Homeland Security attorneys in recent days and they apparently decided that denials had to go out. Regardless of what happened at USCIS—and it is not entirely clear what actually happened—we are going to continue to file alien relative petitions for spouses of U.S. citizens who are facing deportation and we are going to continue to ask judges to adjourn or postpone deportation hearings until those marriage cases have been pursued fully.

We are also going to file marriage-based petitions and applications for a small group of very carefully selected couples to create a foundation for the fight for an abeyance policy. But no one should be attempting this without expert legal counsel, as the consequences of filing such cases could include facing deportation proceedings if the foreign spouse has no other lawful status.

What can LGBTs do to help?

1. We must get those stories out there, as we have done on our DOMA Project website stopthedeportations.com to educate policymakers, legislators and the general public about the extreme injustice suffered by couples who are separated, exiled or living under threat of being torn apart.

2. We must petition Department of Homeland Security Secretary Janet Napolitano for a moratorium on deportations of spouses of gay and lesbian Americans until DOMA’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 a legislative fix was passed by Congress.)

3. We must demand unequivocally that the administration institute an abeyance policy so that all binational gay and lesbian couples can file green card petitions and applications based on their marriages. Despite statements to the contrary, this is possible and consistent with enforcement of DOMA. For almost all couples such an abeyance policy would secure temporary lawful status for the foreign spouse, provide much needed employment authorization and protection from deportation. Final decisions on these petitions and applications would be held until a later date, while Congress works on the repeal of DOMA and various DOMA challenges make their way to the Supreme Court. Right now we must fight for binational couples to survive from day to day and avoid being torn apart by deportation.

Metro Weekly: Senators Ask DOJ and DHS to Hold Green Card Applications and Stop DOMA Deportations

“Attorney Lavi Soloway, who has been litigating several of these cases and co-founded Immigration Equality, went further, telling Metro Weekly, “I am grateful to Senator Kerry and all twelve Senators for their aggressive response today. Gay and lesbian binational couples need executive branch action now. We must stop this government from tearing apart these families.”
Soloway — who started the “Stop the Deportations” project in 2010 — continued, “It is vitally important that DOMA related deportation proceedings be terminated or adjourned, that a moratorium on removal orders be instituted and that no petitions or applications for permanent resident status filed by married gay and lesbian couples be denied because of this unconstitutional law. The Department of Homeland Security and the Department of Justice must move swiftly to develop policy in response to this letter to prevent imminent deportation in numerous pending cases.”
Full story here.

Campaign Launched: Save Henry & Josh’s Marriage Stop the May 6 Deportation of Henry Velandia

Check out this petition by ALL OUT to stop the May 6 deportation of Henry Velandia.

Twelve Senators Lead by Senator John Kerry Issue Letter to DHS and DOJ: Stop The Deportations and Stop Denials of Green Card Applications

Following on the heels of this week’s letter by Congressman Rush Holt (D-NJ) and similar recent statements by Representatives Nadler, Lofgren, Speier, Honda and Crowley, a group of twelve U.S. Senators lead by Massachusetts Senator John Kerry have written to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano urging executive branch action to achieve immigration equality for legally married same-sex couples who are currently discriminated against under the Defense of Marriage Act (DOMA).

“We applaud the President’s decision to no longer defend the Defense of Marriage Act in federal court,” the Senators wrote. “With DOMA as law, however, we are creating a tier of second-class families in states that have authorized same-sex marriage. The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen. We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court.”

In light of the Obama Administration’s decision to stop defending DOMA in federal court, the Senators urged:

* The Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation.

* DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

* The Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

The full text of the letter is below:

April 6, 2011

Dear Mr. Attorney General and Madam Secretary:

We applaud the President’s decision to no longer defend the Defense of Marriage Act (DOMA) in federal court. The law discriminates against a class of Americans, raising fundamental questions of over basic civil rights. However, the administration is still enforcing DOMA, because it is the law of the land.

Five states plus the District of Columbia, have granted same-sex couples the right to get married. With DOMA as law, however, we are creating a tier of second-class families in these states that have authorized same-sex marriage.

The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen. The new administration policy has created confusion and uncertainty in the immigration context. In recent days, the administration issued conflicting statements about how it will consider immigration petitions from same-sex married couples seeking immigration benefits for a non-citizen spouse. As of March 30, 2011, U.S. Citizenship and Immigration Services clarified that marriage-based petitions will be considered under current law, with DOMA preventing recognition of otherwise-valid and lawful same-sex marriages.

We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court. Specifically, we ask the Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation. In addition, we ask DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

Preserving family unity is a fundamental American value and is also the cornerstone of our nation’s immigration law. Thank you for your consideration of this request.

Sincerely,

John Kerry, United States Senator
Patrick Leahy, United States Senator
Barbara Boxer, United States Senator
Ron Wyden, United States Senator
Christopher Coons, United States Senator
Jeff Merkley, United States Senator
Kirsten Gillibrand, United States Senator
Sherrod Brown, United States Senator
Daniel Akaka, United States Senator
Daniel Inouye, United States Senator
Sheldon Whitehouse, United States Senator
Frank Lautenberg, United States Senator

AP: Congressman Rush Holt Seeks End To Deportation of Same-Sex Spouses of U.S. Citizens

Full story here. See full text of the Congressman’s letter to Secretary Janet Napolitano here.

Congressman Rush Holt to Secretary Janet Napolitano: Stop the Deportation of Henry Velandia

Congressman Rush Holt (D-NJ) and DHS Secretary Janet Napolitano 

In the first letter of its kind since the administration changed its position on the Defense of Marriage Act, Representative Rush Holt (D-NJ) urges Department of Homeland Security Secretary Janet Napolitano to “immediately resolve” the deportation case currently impacting his constituents, Josh Vandiver and Henry Velandia, and to halt all deportations involving married gay and lesbian binational couples.

In the letter, Holt writes that their case “illustrates the injustice and unconstitutionality of the Defense of Marriage Act” and notes that “our immigration policies must work to unite families, not rip them apart.” As the Congressman notes, Josh and Henry were lawfully married in the state of Connecticut, but because of DOMA Josh is prevented from petitioning Henry for a green card. In fact, Josh did file an alien relative petition for Henry earlier this year, and that petition was denied. Henry faces a final deportation hearing on May 6. On that day an Immigration Judge in Newark, New Jersey will decide whether Henry will be deported to Venezuela.

Henry came to the United States in 2002 to join his mother. Soon after he sought the services of an immigration lawyer who assisted him in filing an employment based immigration case. The case was initially approved by the Department of Labor, but after waiting for the green card application to be approved for a few years, Henry received a denial letter and was placed into deportation proceedings. Josh and Henry have been together as a couple for five years, but since 2009 they have been fighting deportation. They have taken a prominent role in The DOMA Project – Stop the Deportations campaign tirelessly working to raise awareness of the discrimination against married gay and lesbian couples.

With this letter Congressman Holt advocates strongly for a policy that would end the DOMA deportations: “As a result of DOMA, Henry is ineligible for a spouse visa and will be deported unless the courts rule on the unconstitutionality of DOMA or a bill passes in Congress challenging DOMA. As a U.S. citizen, Josh should receive the full rights granted to all citizens and should not be singled out based on his sexual orientation, which is what is occurring by not allowing Josh to sponsor Henry for a visa.”  Holt expresses his strong support of the admnistration’s February 23 decision not to defend the DOMA and supports its repeal. But, he says, “In the interim, you must not apply this unconstitutional law to tear apart families.”

“In 2009, the Department of Homeland Security made the decision based on humanitarian
grounds to put a moratorium on deportations of the widows of U.S. citizen husbands who
were killed during the wars in Afghanistan and Iraq before they received their green
cards. In light of Attorney General Holder’s new guidance, I am asking you to suspend
the deportation of all spouses of citizens in a same-sex marriage until a decision is reached on DOMA. This is the right thing to do for Henry, Josh and countless others who are being victimized by this discriminatory and unconstitutional law.”

Josh and Henry meeting with Congressman Holt in Princeton, NJ last week

NY Daily News: Married Gay Couple May Be Torn Apart Because of DOMA

Full story here.

The DOMA Project urges gay and lesbian binational couples not to file alien relative petitions and/or applications for a green card without consulting a qualified attorney with experience in LGBT immigration and DOMA. The Department of Homeland Security has said that such filings will be denied pursuant to DOMA. Such denials can lead to institution of deportation proceedings against the foreign spouse.

“A gay Long Island couple who have played by the immigration rules for more than a decade are stuck in a Catch-22 that could tear them apart just when they need each other most. New Yorker Edwin Blesch, 70, and his South African husband, Tim Smulian, 65, have been spending six months on Long Island and six months abroad to comply with Smulian’s tourist visa.

But Blesch, who has HIV, suffered several mini-strokes and other complications and is now unable to travel safely. Smulian is his primary caregiver – but has no way to stay here permanently.

“It’s not a good idea for me to be away,” Blesch, a retired English professor, told the Daily News. “And it’s not a good idea for me to be away from Tim. “That’s the conundrum.”

The men were married in South Africa in 1999, a union that is recognized by New York State and Suffolk County. That allows them to get a joint fishing license each year, but it hasn’t helped with federal immigration benefits – which are not extended to gay couples.

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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.