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

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

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

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

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

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

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

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

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

Brief History of This Case

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

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

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

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

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

Obama Will Not ” Win The Future” In Time For Spouses of Lesbian & Gay Americans Facing DOMA Deportations

This comprehensive report on the crisis of DOMA deportations demands that the Obama administration act immediately (it was cross posted at Pam’s House Blend).  It is a must-read for anyone following the progress of our Stop The Deportations campaign.

We started this work in 1993, just three years after U.S. immigration law was amended to remove the bar on admissibility of gay and lesbian non-citizens.  In the intervening 18 years we have helped to build a diverse movement of binational couples, organizations and advocates.  We have raised the profile of this issue for the general public,  elected officials and major LGBT and immigration reform organizations.

Last July, we launched a new strategy called The DOMA Project. Beginning with the Stop The Deportations campaign our effort was designed to highlight what we believe is the core issue for binational couples: marriage (in)equality. We did this by challenging DOMA in Immigration Court. The message could not be simpler: married same-sex binational couples should be protected by the family unification provisions of our existing immigration laws just like all other married binational couples. The only obstacle that remains is DOMA.  For that reason we have argued that until DOMA’s fate is determined by Congress or the courts this administration must stop deportations that separate lesbian and gay couples, destroying marriages and families. Fighting to halt deportations is a vital part of winning full equality for all binational couples.

Participant couples include those who are separated, those who are exiled, those facing imminent deportation and those who are together in this country but who are living in fear of an uncertain future.

As the architects of this new DOMA-focused campaign we have catapulted the issue of binational couples into the media and brought the crisis of “DOMA deportations” to the White House itself.  You can help us continue this momentum.

To achieve full equality we need your participation and support. Our own personal stories remain our most valuable tool. We have developed a unique blend of legal strategy and advocacy for every couple involved in the Stop The Deportations campaign—strategies that protect them and advance the broader goal of defeating DOMA. Contact us here to find out how you can get involved. It can be as simple as sharing your story and does not require revealing any identifying information. We are also accepting donations to help us expand this effort, in partnership with the Love, Honor, Cherish Foundation.

As part of this pro bono project we have provided free legal advice to binational couples who are separated, exiled or facing deportation. We have collaborated with other attorneys, activists and organizations providing strategic support as binational couples face deportations hearings in Immigration Courts around the country.

And most importantly, we are winning.

We have stopped four deportations in four months. In each case, the government has agreed to allow the couple to remain together for now. In doing so, the government demonstrates that it can respect their relationship, even while DOMA still prevents recognition of their marriage.

(Read about these victories: Anton & Brian, Rodrigo & Edwin, Monica & Cristina, and Henry & Josh.)

The weeks and months ahead will be extremely busy here at Stop The Deportations.  We are confident that we will get our message through and that we will win interim protection for all couples until the day that DOMA is finally repealed or struck down by the Supreme Court. This fight is a part of a larger battle to win full equality.

Rodrigo Martinez Receives Official Stay of Deportation from Immigration Judge

We learned today that the Immigration Court in Baltimore has granted Rodrigo Martinez’s request for an official stay of his deportation. (The decision, shown here, was signed by the Immigration Judge on March 7 but was not posted by the Immigration Court until March 10.) Readers of this site will recall that Rodrigo Martinez was scheduled to surrender to the custody of the Immigration and Customs Enforcement (ICE) in Baltimore on March 9. When he surrendered on that day he was taken into custody, but several hours later he was granted a discretionary release under an Order of Supervision. ICE was willing to give him time to pursue all legal options including a Motion for Emergency Stay of his Removal (deportation) with the Immigration Judge, a Motion to Re-Open his Proceedings and an opportunity for him and his husband, Edwin, to fight for approval of their marriage-based immigration petition.  Rodrigo and Edwin expressed relief today that the Immigration Court had issued this official order, and are hopeful that proceedings will be re-opened. They are grateful to everyone who called and wrote to elected officials in the last two weeks to help keep Rodrigo from being deported.

Media Coverage of The DOMA Project This Week

Washington, DC’s Metro Weekly and the national newsmagazine The Advocate each covered the story of Edwin Echogoyen & Rodrigo Martinez as part of their overall coverage of the implications of the President’s new position of the Defense of Marriage Act.

From Metro Weekly:

“On Feb. 25, attorney Lavi Soloway announced that he was filing multiple requests on behalf of married, same-sex bi-national couples where one spouse is facing deportation. A day earlier, on Feb. 24, Soloway began the process in a case before the Board of Immigration Appeals (BIA) in which Joshua Vandiver is seeking to sponsor his husband, Henry A. Velandia Ferreira, for immigration purposes. Velandia had come to the U.S. from Venezuela on a work visa, which has since expired.

Ordinarily, an American spouse would be able to sponsor his spouse for immigration purposes, but DOMA prevents Vandiver from sponsoring Velandia – despite the fact that they were legally married in Connecticut.

As soon as Wednesday, March 9, another couple – Edwin Echegoyen and Rodrigo Martinez – face separation, as Martinez is due to surrender in Baltimore for deportation to El Salvador on that day.
On March 7, Soloway filed a Motion for Emergency Stay of Removal, which would prevent Martinez’s deportation, and a Motion to Reopen Proceedings and evidence of the marriage, which could lead to the consideration of whether DOMA should continue to prevent Echegoyen from being able to sponsor Martinez, with the relevant officials.

Talking with Metro Weekly about the challenges, Soloway said, ”The attorney general’s statement and position on the Defense of Marriage Act is very relevant and we think that, regardless, the [relevant officials in immigration courts and the BIA] should take note of it. It could hardly be more relevant.”

In addition to the legal cases, Soloway – a co-founder of Immigration Equality – noted, ”There’s room there to make policy, and I think that policy should be to hold those cases in abeyance.”

See full story, “DOMA’s Immigration Implications :Bi-national gay and lesbian couples and their advocates see a sign of hope in the administration’s recent conclusion that part of DOMA is unconstitutional.”

From The Advocate:

“Though Atty. Gen. Eric Holder stressed in a February 23 announcement that the administration would continue to enforce DOMA, Soloway argues that executive agencies have the discretionary power to halt or postpone deportation orders affecting legally married gay couples — discretion it has used in other circumstances, including a 2009 moratorium on deporting widows or widowers of U.S. citizens who had been married for less than two years.

“Edwin and Rodrigo fall squarely at the intersection of this new position,” Soloway said of the administration and its stance on section 3 of DOMA, which bars the federal government from recognizing the marriages of same-sex couples. “This is an important act of protest … and the beginning of a process by which they may one day receive the green card for Rodrigo that they deserve.”

Representatives Jerrold Nadler of New York and Zoe Lofgren of California, both well-known proponents of LGBT immigration rights in Congress, have both called upon the administration in recent interviews with The Advocate to stop deportations in cases like that of Martinez.
New York senator Kirsten Gillibrand, whose constituency includes binational gay couples facing deportation crises that have also drawn media attention in recent weeks, said in a Monday statement, “The recent news of deportations involving legally married gay and lesbian binational couples is heartbreaking.”

See full story, “DOMA’s Continued Consequences.”

DC Channel 9 Interviews Rodrigo & Edwin as they Exit the Baltimore Deportation Office Today
Delia Gonçalves did a great job on these two reports standing outside the Baltimore Federal Building for hours waiting for the couple to (hopefully) emerge; but there are a few minor points here that she inadvertently misstated. So just for clarification purposes: The Obama administration is enforcing the Defense of Marriage Act, they are simply not defending Section 3 of that law in court because they believe it is unconstitutional. Also, the fight here is for recognition of Edwin & Rodrigo’s marriage as equal to all other marriages under the Immigration & Nationality Act, and that has nothing to do with “civil unions.”

Closing quote: “Maryland Congressman Chris Van Hollen worked with the couple, he also co-sponsored legislation to ban the Defense of Marriage Act.”  Thank you Congressman Van Hollen!

More Good News: USCIS Issues Receipt for Edwin & Rodrigo’s Marriage Based Immigration Petition

In a nice coincidence capping off a cliffhanger of a day, today’s mail brought the official receipt from the USCIS acknowledging that there is now a pending petition filed by a U.S. citizen, Edwin Echegoyen, for his husband, Rodrigo Martinez. While the couple cannot at this moment expect to receive a “green card” as a result of this filing, they will continue to fight against DOMA and deportation.

Rodrigo Martinez Released on Order of Supervision

Score another win for the DOMA Project. The Deportations & Removal Office in Baltimore considered the pending Motion to Reopen and Motion for Emergency Stay of Removal, as well as Edwin Echegoyen’s I-130 Marriage-Based Alien Relative Petition in their decision today and determined that Rodrigo should not be deported at this time.  Edwin Echegoyen will now have the $5,000 bond he put up for Rodrigo in 2004 refunded to him.  Rodrigo is now free to return to his daily routine but will be required to report monthly pursuant to an Order of Supervision. According to the couple, the Deportation Officer handling the case could not have been nicer.  More details to follow.

See MetroWeekly article: “Maryland Bi-National Same-Sex Couple Avoids Separation, for Today

Attorney Lavi Soloway provides the following update about Edwin Echegoyen and Rodrigo Martinez. The Maryland couple, who married in D.C. on March 1, faced separation today, as Martinez was due to surrender in Baltimore for deportation to El Salvador.
Soloway relayed that “Rodrigo was released, details to follow” in an email sent to Metro Weekly at 2:30 p.m. today.

As Soloway wrote to Metro Weekly earlier today, “Rodrigo is in [immigration officials'] custody and will have to surrender his passport, but it looks like they may be releasing him today under an Order of Supervision, taking into account (1) Motion to Reopen Proceedings (2) Motion for Emergency Stay of Removal (3) Pending Petition for Alien Relative (marriage-based) filed by Edwin.”

Edwin & Rodrigo To Meet With Deportation Officer

This morning, shortly before 9 a.m., Edwin Echegoyen and Rodrigo Martinez will present themselves to the Deportation and Removal Branch at the Baltimore District Office of Immigration and Customs Enforcement. As of late Tuesday night, the Deportation and Removals Branch had offered no reprieve from the obligation to surrender no later than March 9. Therefore, in compliance with the notice Edwin received in February demanding that he surrender Rodrigo to the custody of DHS under the terms of the bond agreement executed in 2004, the couple will travel from their home in Rockville, Maryland and, accompanied by closer family members for moral support, they will meet with the government officials who will ultimately decide Rodrigo’s fate.  At this point, given his several year-old outstanding Order of Removal, Immigration & Customs Enforcement is likely take Rodrigo into custody on Wednesday and hold him at a government detention facility pending deportation. It is also possible that they may also consider other options including a release under an Order of Supervision (similar to parole,  it would require Rodrigo to comply with routine appointments to check in with the Deportation Officer as they continue to monitor his case). We await news of the Deportation Officer’s final decision on Rodrigo’s case, which will not be known until Rodrigo surrenders to the custody of the Department of Homeland Security this morning.

EDGE Reports: Edwin Echegoyen Must Surrender His Husband, Rodrigo Martinez, for Deportation

The complete article was posted by EDGE on Monday March 7.

“A gay Maryland man will have to surrender his partner for deportation on Wednesday if his last minute appeals fail.

Edwin Echegoyen met Rodrigo Martinez at the gym in 2003-Martinez had come to the United States from El Salvador on a tourist visa a couple of weeks earlier. The two men began dating. And they soon settled in Rockville, Maryland.

The men decided to vacation in Puerto Rico with three other gay couples in 2004 after Echegoyen’s mother passed away from cancer. Authorities detained Martinez as he and Echegoyen attempted to board their flight back to Maryland. They released Martinez after Echegoyen posted bail.

“He was released under my own custody and we’ve been working through the legal system to find some kind of relief for him to stay here with me,” Echegoyen told EDGE.

These efforts included applying for a work visa and seeking asylum based on Martinez’s fear he would suffer anti-gay persecution in his homeland. Both petitions were denied. And Echegoyen received a letter from the Department of Homeland Security late last month that said he would have to surrender Martinez to federal authorities in Baltimore on March 9 because he posted his bail in 2004.

Martinez and Echegoyen married in the District of Columbia on March 1. Echegoyen obtained a certified marriage certificate from the court, and filed a marriage-based petition with the Department of Homeland Security that would allow him to sponsor Martinez for residency.

“It is so upsetting because we want to celebrate,” said Echegoyen, noting some of his and Martinez’s friends attended their wedding during their lunch hour. “This is something we had talked about doing-getting married, but not under these circumstances.”

DOMA Deportations

The Defense of Marriage Act specifically bans the federal government from recognizing marriages of same-sex couples for immigration and other purposes. The Obama administration announced last month it will no longer defend DOMA in federal court.

Congressman Chris Van Hollen [D-Md.], in whose district Martinez and Echegoyen live, co-sponsored a bill in the last Congress that would have repealed DOMA. Congressman Jerrold Nadler [D-N.Y.] has said he plans to reintroduce a DOMA repeal measure in the House, while U.S. Sen. Dianne Feinstein [D-Calif.] has indicated she would follow suit in the U.S. Senate.

“The recent news of deportations involving legally married gay and lesbian bi-national couples is heartbreaking,” U.S. Sen. Kirsten Gillibrand [D-N.Y.] told EDGE in a statement. “It is critical that we repeal the Defense of Marriage Act and ensure that immigration laws respect all loving, committed marriages.”

“In the name of the Defense of Marriage Act, gay and lesbian couples literally find their marriages being destroyed,” said lawyer Lavi Soloway, noting many of the estimated 36,000 bi-national couples in the United States have children. “It’s the fabric of American society that’s being torn when you deport somebody. It’s not some other person, some stranger, some alien that the law would refer to that person.”

Soloway, who also represents Martinez and Echegoyen, continues to pursue an emergency stay on the pending deportation and a petition to reopen Martinez’s asylum request. “We have a great opportunity to stop the deportation,” he told EDGE just before a hearing before an immigration judge in Baltimore.

Echegoyen, however, said the ongoing legal battle has certainly taken its toll.

“We’re not sleeping because what if March 9 comes and there’s no relief,” he said. “It’s such a horrible, horrible situation to put people in-to choose between your family and your country. What do you do?”

Edwin & Rodrigo Featured on DC Local News

Delia Gonçalves did a great job on this report (“Deportation Controversy After DC Marriage”), but she did misspeak when she said that the Obama administration would not enforce DOMA. Of course, as readers of our site know, on February 23 the President and Attorney General announced that they would no longer defend DOMA in court, but the Executive branch will continue to enforce it as it remains the law of the land for now. This short piece captures the essence of the discrimination against gay and lesbian binational couples and elicits the first public statement from Edwin & Rodrigo’s Congressman, Chris Van Hollen. Congressman Van Hollen, however, does not go as far as his colleagues Rep. Nadler and Rep. Lofgren who last week called for the administration to halt the deportations. We must keep the pressure on our elected officials to achieve a policy for all binational couples facing deportation. Please call Congressman Van Hollen and thank him for his support, but urge him to call on the White House to formulate a policy that allows individual DHS Trial Attorneys, Immigration Judges and other adjudicators to exercise prosecutorial discretion and delay or defer action on deportations involving married same-sex binational couples. As we get closer to March 9, we are asking everyone to please make three phone calls and ask these elected officials representing Edwin & Rodrigo in Congress to fight for a policy to halt the DOMA deportations: Call Congressman Chris Van Hollen at (202) 225-5341, Senator Barbara Mikulski (202) 224-4654 and Senator Benjamin Cardin (202) 224-4524.

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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.