Ed & Tim: An Eleven Year Struggle to be Together

I met Tim, my Canadian partner, over eleven years ago. At the time, I had only been out to myself for two years after 18 years in repressive, conservative churches. I knew the road for binational couples was hard, but I was naively optimistic. I hoped that the Permanent Partners Immigration Act (now known as the Uniting American Families Act) would be passed soon. Years later, even as that legislation has progressed and built support in Congress year after year, binational couples face the very same hurdles as Tim and I did when we first met. It’s tragic, really.

Through the first ten and one-half years, we managed to remain together, always working hard to comply with the letter of the law. Eventually, Tim found a teaching job with a local Quaker school willing to sponsor him for a visa. For six years, he gave everything he could to that school and really enjoyed being a part of their team. Thanks to complications with lawyers, misinformation, and a ticking clock, we found out late in 2009 that, barring a miracle, Tim would have to leave the US in August of 2010 for one year, so that he would once again be eligible for the visa status that had enabled him to be employed as a teacher for the past six years. And his school, despite loving him almost as much as I do, wouldn’t “hold” his position, though they remain willing to re-hire him if they have an opening.
To make matters worse, Tim couldn’t find a reasonable job in Canada. He was offered one in an extremely remote village in northern Manitoba—so remote, in fact, that their selling point was that it was a mere three hour drive to the closest Walmart… of all places!

Having considerable debt, we knew he had to work for our year of separation just in order to make ends meet. But where?

Years before we met, Tim had taught in Turkey and in Guatemala, so he returned to the idea of teaching in foreign schools. About seven months before his visa expired, he attended an international teaching fair and landed a job… in Cairo, Egypt.

To put it mildly, I was devastated. It may be hard for readers to imagine, but Cairo actually was less remote than northern Manitoba. Well, at least it WAS. We felt that as long as he stayed “in the closet,” he would be ok.  So last August, I said, “farewell,” to my only love. He began teaching during Ramadan, in Egypt. Being seven time zones apart proved to be quite the challenge. Not just the time difference, but the fact that technology we take for granted in the US is not so cutting edge in a country like Egypt. And that was before the events of the past two months.

In mid-November, I was laid off from my job as a technical writer. I had been with my company for more than twelve years, and with a plan to visit Tim already in the works, I decided to spend a month in Egypt, saving a few dollars by not visiting over the Christmas rush.

Shortly after returning to the US in January, though, all hell broke loose in Cairo. I knew Egypt wasn’t the gay-friendliest place on Earth, but I had no idea just how unstable it could be. It’s bad enough to be separated from the one you love—for the simple reason of being the same gender—but then to be seven time zones apart while your partner is in a country undergoing a revolution—however peaceful some of it might be—is agonizing.

Time ticks slowly by. Thank goodness, it does tick, but living this reality is like hearing each grain of sand as it squeezes through the narrow neck of the timer. Nothing goes quickly.

If we were a heterosexual couple, we could marry, and I could sponsor Tim for a green card. We’ve demonstrated a commitment that has out lasted so many straight marriages, and yet, we’re still denied basic rights.  In fact, we would marry in a heartbeat if the Defense of Marriage Act would cease being the sole obstacle to our access to the very family-based immigration system designed to keep binational couples together.

It’s simply unfair. It must end. With DOMA under attack on multiple fronts, it is time for binational couples to stand up and tell their stories and demand that this discrimination end. I should have the right, as an American citizen, to petition for a fiancé visa for Tim and bring him here to marry me so that we can apply for a green card. This is routine for straight couples in our situation. My government should not be treating me any differently. Please join our effortand this campaign. Support Senator Feinstein and Representative Nadler’s bills to repeal DOMA. Most importantly: go out there and tell your story. Give a human face to the cruelty inflicted on our community by DOMA which defends no marriages, but tears apart our families.

Metro Weekly: DOMA’s Immigration Imbroglio

See full story here.

Congresswoman Jackie Speier and Congressman Mike Honda Urge the Administration to Restore Abeyance Policy and Stop Deportations

See full article here.

Radio Interview with Lavi Soloway About The DOMA Project March 27, 2011

DOJ to Married Green Card Applicants: DOMA Still Applies

From Keen News Service:

Just days after putting the applications for green cards on hold for same-sex married couples, the U.S. Citizens and Immigration Service (USCIS) announced it is back to processing them again—with the Defense of Marriage Act (DOMA) in play.

“The last few days have been extremely frustrating and disappointing,” said Lavi Soloway, an attorney specializing in binational same-sex married couples seeking immigration. “USCIS raised hopes that they had created a desperately needed interim remedy that would protect married gay and lesbian binational couples. But within days, the administration reversed the abeyance policy that had been in place in two USCIS offices, and briefly, nationwide. In the process, they created tremendous confusion.”

Christopher Bentley, press secretary for USCIS, said Wednesday that the agency has received the legal guidance it sought from the Department of Justice concerning DOMA and green card applications by same-sex married couples.

Same-sex married couples’ applications are “no longer on hold,” he said. And “USCIS has not implemented any change in policy and intends to continue enforcing the law.” In other words, DOMA still applies.

DOMA prohibits any agency of the federal government from recognizing a marriage license granted to a same-sex couple. For binational same-sex married couples seeking a green card to enable the foreign spouse to establish permanent residence in the U.S., the law closes a door open to other married couples. Spouses and other “immediate family members” can obtain green cards without waiting for a visa number to become available.

USCIS sought clarification from DOJ after U.S. Attorney General Eric Holder announced February 23 that DOJ would no longer defend DOMA in court as meeting heightened constitutional scrutiny. DOJ had also indicated it would continue to enforce DOMA until or unless the courts determined the law was unconstitutional. But some attorneys in the immigration field questioned whether the Holder announcement might apply to immigration courts.

USCIS issued a one-sentence statement Wednesday, saying, “USCIS has not implemented any change in policy and intends to continue enforcing the law.”

Soloway characterized that “explanation” as “unacceptable.”

“While DOMA is the law of the land, green card applications cannot be approved by USCIS,” said Soloway, “but there is no imperative that they be denied. Adjudications can be put on hold with final decisions on these cases deferred, giving binational couples lawful status and protection from deportation until DOMA is either repealed by Congress or struck down by the Supreme Court.”

“This unconstitutional law,” said Soloway, “should not be used as an excuse to do nothing while gay and lesbian families are being torn apart.”

Copyright ©2011 Keen News Service. ALL RIGHTS RESERVED.

ABC News: Emotional Rollercoaster Over DOMA

Full story here.

“I am a scholar of ancient Greek political thought and the Renaissance and politics,” said Vandiver, 29. “I never intended or wanted to be an activist. But I have to do what is necessary to save my marriage and to keep the one I love in this country. I think that is my right as an American citizen.”

Josh & Henry Meet With Congressman Rush Holt, Gay City News Reports on Progress and Setbacks

Excerpt from “Progress–and Fits and Starts–on Immigration,” Gay City News, March 31, 2011.

“In a dizzying — and not fully transparent — series of developments this past week, the prospects for married same-sex bi-national couples hoping to stay in the US showed improvement, though how far-reaching the gains are remains uncertain as of press time.

In what appears to be the first such action of its type, an Immigration Judge in Manhattan, who works under the Justice Department, on March 22 adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

Also last week, Newsweek reported that the heads of two district offices, in Baltimore and Washington, DC, of the US Citizenship and Immigration Services (USCIS) — which is part of the Department of Homeland Security — had separately stated publicly they have put on hold the processing of any applications for spousal recognition or green cards from married same-sex couples. Such applications have routinely been denied in the past, so by putting them instead “in abeyance,” USCIS would be strengthening the arguments a married same-sex couple would have in deportation proceedings before an Immigration Judge.

In comments made to Metro Weekly on March 28, a USCIS spokesman in Washington said the abeyance policies adopted by the DC and Baltimore offices were now in place nationwide, a development that would represent a huge victory. After Metro Weekly published that news, however, another Homeland Security official told the newspaper that the abeyance was temporary — perhaps as short as a week — designed only to allow the department’s general counsel to examine the impact of the Justice Department’s February announcement that it now views the denial of federal recognition of same-sex marriages mandated by the Defense of Marriage Act unconstitutional. DOMA is the basis on which USCIS has to date denied applications for spousal recognition or green cards from same-sex married couples. Precisely where that Homeland Security clarification leaves the issue remains unclear.

[Update: On the morning of March 30, after the publication and posting of this story, Metro Weekly reported that USCIS stated that the temporary policy of abeyance has ended as a result of a new guidance from internal counsel. A spokesman told that newspaper that applications from married same-sex couples would once again be processed as they have been previously, in compliance with DOMA. That spokesman, Christopher Bentley, later told Gay City News that the end of the abeyance period applies in Washington and Baltimore as well as in the rest of the nation. He also said, however, that none of the discretion USCIS or Homeland Security had under the law previously has been curtailed as the result of the Justice Department's February statement that DOMA would continue to be enforced.]

The victory last week in Manhattan was less ambiguous, though the specific steps forward for the couple are not yet known. Monica Alcota, 35, who came to the US a decade ago, married her partner of nearly three years, 25-year-old Cristina Ojeda, last August in Connecticut. The couple’s attorneys, Lavi Soloway and Noemi Masliah, argue that their clients’ marital status should qualify Alcota for permanent residency, as would be the case with any different-sex couple.

A 2010 US court ruling striking down the Defense of Marriage Act’s denial of federal recognition for legal same-sex marriages, they say — coupled with the Justice Department’s recent announcement regarding DOMA’s constitutionality — opens up the real possibility that Alcota and Ojeda may win recognition from the US government. At the US courthouse in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the USCIS through what is known as Form I-130, a petition to have Alcota recognized as “the spouse of USC.”

For now, the couple’s case has been adjourned until December, a decision supported by the government’s attorney.

“It is almost impossible to overstate the significance of what happened in there,” Soloway said immediately after the hearing. “An adjournment based on an I-130. It would never have happened a year ago. I don’t think I even would have filed it.” Describing the development as “huge,” Soloway also credited Bain with being “very kind, very generous” in her handling of the case. Masliah echoed her law partner’s assessment, terming Bain’s action “benevolent”; she added, however, that it is also “realistic in light of recent developments.”

Steve Ralls, a spokesman for Immigration Equality, which advocates on behalf of bi-national gay and lesbian couples whose right to stay together in the US is threatened, agreed with the assessments by Soloway and Masliah that Bain’s action was both significant and appropriate in the current context. “It sounds like what happened in this case is what should have happened,” Ralls said. “We have other families planning to file I-130s, and this should be good news for them.” To the best of his group’s knowledge, he said, Bain’s move was unprecedented.

Last week, Immigration Equality wrote to Holder asking that proceedings against immigrant same-sex spouses facing deportation be placed on hold while the DOMA issue remains in the courts.

For Alcota and Ojeda, the legal developments of the last eight months represent some respite from what has been “hanging over our heads,” Ojeda explained — “that I would lose her.” That’s exactly what happened to Ojeda — for three months, at least — in 2009. As the Queens couple was traveling by bus through upstate New York, a spot border control check resulted in Alcota being detained by immigration officials. She ended up in a detention center in Elizabeth, New Jersey, from which she could have been deported at any time.

Finally, an Immigration Judge — a woman, the couple noted — saw Alcota and determined she had “a reasonable fear” of persecution should she be returned to Argentina. She had fled her home country, where she lived in a region near the Chilean border, with her then-partner because the two believed their lives were at risk. Soloway said if court challenges to DOMA ultimately prove unsuccessful, he would argue Alcota deserves asylum based on her provable fear of persecution back home.

After the ten-minute hearing, Alcota remained nervous, the adrenalin apparently not yet having worked its way through her system. Still, she expressed relief that she will have the chance to fight for the validity of her marriage. “Now I feel relieved,” Alcota’s spouse Ojeda said. “That they are going to give us a chance to argue our case.” Ojeda said Bain’s action “acknowledged our marriage.”

With DOMA litigation and the status of Ojeda’s I-130 likely to still be open questions in December, Alcota’s next appearance before Judge Bain could amount to nothing more than a perfunctory status update and further adjournment.

Josh Vandiver, 29, and his Venezuelan-born husband, Henry Velandia, 27, who live in Princeton and are also clients of Soloway’s, find themselves in a somewhat different position than Ojeda and Alcota. With Velandia facing a deportation hearing on May 6, the couple endured a setback when, in early February, Vandiver’s I-130 application was rejected — in lightning speed, according to Soloway. Just days before their motion to the Board of Immigration Appeals challenging that denial was due, however, the Justice Department issued its new position on DOMA’s constitutionality, giving added strength to Vandiver’s claim that his spouse ought in fact be recognized as his spouse for immigration purposes.

Soloway drew on the Justice Department’s February DOMA statement in finalizing the appeal motion, but on his advice, the couple has now decided to drop the appeal route in favor of resubmitting an I-130, along with a green card application. News of the abeyance policy acknowledged by the USCIS’ Washington and Baltimore district offices certainly lent comfort to that decision — and the suggestion on Monday from the agency’s national spokesman that all applications might now be on hold seemed the best news of all.

For Vandiver and Velandia, who attended a March 28 immigration forum in Princeton where their congressman, Democrat Rush Holt, committed to pressing Homeland Security to handle I-130 applications like theirs in a way that will not lead to deportations, the situation nevertheless remains unsettling.

“We are still worried that until the Defense of Marriage Act is defeated, Henry can’t get his green card, which will protect him,” Vandiver said. “Henry’s deportation is still looming. We have a hearing on May 6.”

Noting that matters are still very much in the hands of the Immigration Judge they happen to face, Vandiver acknowledged that the Obama administration’s changed tune on DOMA was the most positive development he and Velandia had seen. “If not hope,” he said, “at least it provided relief that the most powerful officeholder is aware of the pain caused by DOMA. A sense of relief and an appreciation on our part.”

NY1 Noticias Reports on Henry & Josh and the Fight Against DOMA and Deportation

Watch NY1 Noticias report: “Matrimonios homosexuales no tendrán beneficios de inmigración,” here. Pictured below: Noemi Masliah, co-founder of The DOMA Project.

New York Times: Confusion Over Policy for Married Gay Binational Couples

Read full article here.

“Word also went out across the country. In Princeton, N.J., Josh Vandiver and Henry Velandia, in the middle of a public forum on immigration issues, embraced and cheered. They said they had heard from their immigration lawyer that the agency’s announcement might mean at least a temporary reprieve from deportation for Mr. Velandia.

Mr. Vandiver, 29, is an American citizen and a political science graduate student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were married last August in Connecticut, one of the states that recognize same-sex marriages. Their application for a green card for Mr. Velandia was recently denied, and he is facing deportation as early as May.

But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship and Immigration Services “has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law.”

Mr. Bentley said the agency’s field offices had suspended cases for a short period, perhaps a week or two, while lawyers clarified a “narrow legal issue” concerning the marriage act. He said the agency would probably resume action on same-sex marriage cases in coming days and would continue to deny immigration status to foreigners based on those marriages.

Immigration lawyers tried on Tuesday to sort out the meaning of the events.

“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand that “if they file for immigration status, they may be putting themselves at considerable risk of deportation.”

Daily Brink: Josh & Henry, Lawful Husbands

“While we initially expected to dive into a heavy political conversation with Josh and Henry, we found ourselves simply talking to two men with an extraordinary amount of love for one another, and a simple request: equality.” - Daily Brink’s profile of Josh and Henry

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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.