Victory for Monica & Cristina! Government Closes Deportation Case Against Married Lesbian Couple in New York

Immigration & Customs Enforcement Closes Deportation Case Against Argentinean Lesbian, Monica Alcota, Based on Ties to Community Including Marriage to her Spouse, Cristina Ojeda

First Case of a Married Gay Couple Closed Since New DHS’ November 17 Announcement That “Working Group” Would Begin to Implement Prosecutorial Guidelines Nationwide

For the first time since the Department of Homeland Security’s  (DHS) November 17 announcement that a national “working group” had begun reviewing all cases currently pending in immigration courts, Immigration & Customs Enforcement (ICE) has closed a deportation case involving a married same-sex couple.

Although the latest DHS “prosecutorial discretion” guidance still did not explicitly include LGBT families, advocates at Stop the Deportations say that the decision by ICE demonstrates that existing criteria can be properly applied to keep married gay and lesbian couples safe from deportation.

Immigration Judge Terry Bain granted a Joint Motion to Administratively Close Removal Proceedings against Argentinean born lesbian, Monica Alcota, because “good cause has been established.”  Judge Bain’s decision was dated November 30, and was received yesterday, just one day before Monica Alcota was due back in court for a final deportation hearing.  Monica Alcota’s lawyer, Lavi Soloway, submitted the request for Administrative Closure to ICE Chief Counsel in Manhattan on November 14.  The request was based on her marriage to her U.S. citizen spouse, Cristina Ojeda; her deep roots in the community in which she lives and works; her activism against DOMA; and the absence of any adverse factors, i.e. that Monica Alcota is a hard-working, law-abiding person who is not a danger to the public safety or national security.

For most lesbian and gay Americans with foreign-born spouses the only obstacle to a “green card” is the so-called “Defense of Marriage Act,” (DOMA) the law that prevents the federal government from recognizing the legal marriages of lesbian and gay couples.

The “DOMA deportation” that threatened to tear apart Monica Alcota and Cristina Ojeda, a married lesbian binational couple who live in Queens, New York was stopped after ICE attorneys agreed to Alcota’s request and submitted a Joint Motion for Administrative Closure to the presiding Immigration Judge on November 29.

This is the first time the government has asked an immigation court to close removal proceedings against the gay or lesbian spouse of an American citizen since the formation of an inter-agency prosecutorial discretion working group began its work on November 17 with the goal of finding and closing all “low-priority” deportation cases.

Statement from attorney Lavi Soloway, Founder, Stop The Deportations:

“We are thankful to Immigration & Customs Enforcement and to Immigration Judge Terry Bain for closing this case and stopping the deportation of Monica Alcota. Although the Department of Homeland Security has declined numerous requests in recent months for specific, LGBT-inclusive guidance on deportation cases, this action demonstrates that existing guidelines that weigh “family relationships” and “ties to the community” can be properly applied to protect married lesbian and gay binational couples.  After a courageous battle, Monica and Cristina have arrived at the end of a long journey that began when Monica was pulled off a Greyhound bus in July 2009 and held in an ICE detention facility for three months while we fought for her release. That nightmare ends today.  Monica and Cristina can now turn to the business of building a future together without living in constant fear of deportation.

Importantly, this shows married lesbian and gay binational couples can be protected from deportation when ICE fairly applies its own guidelines. By halting this deportation, ICE prevents a marriage from being torn part by DOMA, a law that the President and the Attorney General have determined to be unconstitutional and have refused to defend in Federal Court.”

Statement from Monica Alcota and Cristina Ojeda:

“We are grateful that the government lawyers and the judge saw the humanity of our situation and respected our marriage.  We have learned through this process how important it is to stand up for ourselves and how much we can all achieve when we demand to be treated equally.  This battle is not over. Our green card case is on appeal, and of course we will not have full equality until DOMA is gone. We must all continue to work to make sure no lesbian or gay couples are separated by deportation. We thank all those who have supported the Stop The Deportations campaign and all those who have given us encouragement and strength to keep up the fight.”


BACKGROUND

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

In March, New York Immigration Judge Terry Bain, acting with the agreement of the Immigration & Customs Enforcement prosecuting attorney, temporarily postponed Monica’s deportation hearing on the basis that Cristina had filed a marriage-based “green card” petition for her Argentinean wife. At the time, Monica and Cristina were the first married same-sex couple to have their deportation case postponed on the basis of their marriage. The couple was scheduled to return to court on December 6, 2011 for a deportation hearing to review the status of that petition.

In April, USCIS denied Cristina Ojeda’s “green card” petition for Monica, citing DOMA and also relying on a 1982 decision known as Adams v. Howerton from California’s Ninth Circuit Court of Appeals. Ojeda appealed the denial of her petition to the Board of Immigration Appeals (BIA). The lawyers for the couple, Stop The Deportations co-founders, Lavi Soloway and Noemi Masliah, filed a brief arguing that the BIA should not affirm the denial considering that the Department of Justice, of which the BIA is a part, has itself determined that DOMA is unconstitutional.  The brief argued that the BIA should hold the case in abeyance, given the rapidly evolving legal context, specifically the DOJ’s filing of a 31-page brief against DOMA and in support of the plaintiff in the Golinski case on July 1; the DOJ’s decision to allow married same-sex couples to be recognized as married in U.S. Bankruptcy Court proceedings on July 7; and the Attorney General’s historic intervention in a BIA decision on May 5 that suggested the DOJ was considering whether “partners” in civil unions could be recognized as spouses for immigration law purposes.

In the memo requesting ICE attorneys join the motion to close proceedings, Soloway argued that Monica Alcota met numerous prosecutorial discretion criteria laid out in the June 17th Morton Memo  (original memo text italicized):

  • Whether the person has a U.S. citizen or permanent resident spouse, child, or parent.
    Soloway argued that Monica has a U.S. citizen spouse, Cristina, and they were lawfully married in Connecticut in 2010.
  • The person’s ties and contributions to the community, including family relationships.
    Soloway argued that Monica has formed strong community ties in the 11 years she has lived in the US: she has a successful antique furniture business, is a well-respected member of her community, and received a number of very heartfelt letters from long-time friends and associates detailing her connection to her community.
  • Particular attention should be paid to plaintiffs in non-frivolous lawsuits involving civil rights.
    Soloway argued that Monica and Cristina were part of an advocacy campaign, namely, Stop the Deportations, that had filed I-130 marriage-based “green card” petitions in order to challenge the Defense of Marriage Act in pursuit of (equal) civil rights.
  • The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants.
    Soloway noted that Monica has no criminal history, no arrests, convictions, outstanding arrests or charges.
  • The person’s ties to the home country and conditions in the country.
    Soloway argued that Monica has no ties to her home country of Argentina and has not lived there for 11 years. Additionally, Monica had no intention of ever returning to live in Argentina and feared for her safety as an openly gay woman were she forced to live there.

In response, ICE agreed to close the case and submitted a Joint Motion to Administratively Close proceedings directly to Immigration Judge Terry Bain on November 29.

For Monica and Cristina, the move by the government means that they will no longer have a cloud hanging over their future. They will continue to fight for full equality, including a “green card” for Monica based on her legal marriage to a U.S. citizen, but without worrying that the government will destroy their marriage, or tear apart the life they have built over the past three and a half years.


STOP THE DEPORTATIONS – THE DOMA PROJECT,  a campaign co-founded by attorney, Lavi Soloway in July 2010 along with his law partner, Noemi Masliah, has contributed to the trend of recent victories for lesbian and gay couples who are faced with deportation, separation or exile because of the Defense of Marriage Act. For nearly two decades, Soloway has been the most prominent attorney and advocate on LGBT immigration law and policy in the United States. He has worked exclusively in this field since co-founding the non-profit organization, Immigration Equality, in 1993.


IMMEDIATE RELEASE- DECEMBER 6, 2011
Press Inquiries to attorney, Lavi Soloway, or
Project Associate, Derek Tripp, at Stop The Deportations-The DOMA Project
Phone 323-599-6915
Email [email protected]


A Look Back At Monica & Cristina In the News

Uniting American Love: Binational Couples Press For End to Deportations,” Gay City News, October 30, 2010

Monica and Cristina: Binational Lesbian Couple in Queens Fights DOMA and Deportation,” Stop The Deportations, October 26, 2010

Hope for Queens Couples’ Immigration Rights After Obama’s Abandoning of Defense of Marriage Act,” NY Daily News, February 26, 2011

DOMA Offers Slim Hope For Same-Sex Bi-National Couples,” UpTown Radio, March 11, 2011

Advocates Urge Delays In Same-Sex Binational Deportation Cases Based On DOMA’s Uncertain Future,” Equality Matters, March 21, 2011

Bi-National Lesbian Couple Can Press US Marriage Claim: In unprecedented move, Immigration Judge adjourns deportation proceeding amidst DOMA litigation,” Gay City News, March 22, 2011

New York Couple Fighting to Stay Together,” Freedom To Marry, March 22, 2011

Monica & Cristina Will Ask Immigration Judge Tuesday to Terminate Deportation Proceedings,” Stop The Deportations, March 21, 2011

Immigration judge suspends deportation of foreign-born gay spouse,” GayAmericaBlog, March 22, 2011

Queens Woman Won’t Be Deported, Judge Says, Until Legal Status Of Same-Sex Marriage Is Clear, Huffington Post, March 23, 2011

Gay woman gets stay of deportation in the midst of DOMA upheaval,” Nerve.com, March 23, 2011

Lesbian U.S. Citizen First to File for her Spouse’s Green Card,” Journal.Us, March 24, 2011

Hope for Binational Lesbian and Gay Couples,” SheWired.com, March 28, 2011

DOMA And Immigration: What’s Next?” WNYC, April 4, 2011

Gay woman in same-sex Queens marriage won’t be deported, judge says ruling depends on pending law,” Daily News, March 23, 2011

Lesbian Couple Fight Deportation Effort,” Passport Magazine, March 24, 2011

US lesbian couple have deportation suspended: A lesbian couple in the US the first couple to successfully halt pending deportation proceedings based upon their marital status,” Pink Paper, March 24, 2011

NY Court Considers Marriage Of Argentine Gay Woman For Citizenship,” On Top Magazine, March 28, 2011

Love May Conquer All in DOMA Challenge Case: In October 2010, A Group of Married, Binational LGBT Couples Came Together to Form Stop the Deportation,” GO MAGAZINE, April 7, 2011

Obama’s Future Win Will Come Too Late,” VIDEO, Pam’s House Blend/FireDogLake, June 9, 2011

Lambda Legal to Immigration: Stop using DOMA to discriminate against married same-sex couples,” The Windy City Times, July 13, 2011

For Queens Lesbian Couple, A New Curve Ball,” Gay City News, July 22, 2011

Queens Gay Couple Fear New Law Will Not Stop Deportation,” Queenslyfe, July 23, 2011


Monica & Cristina Take DOMA Deportation Fight to Board of Immigration Appeals, Challenging a 29-Year Old Precedent

MSNBC: Binational Couples Fighting for Full Marriage Equality and for the Right to Stay In the U.S.

See full article here.

Monica & Cristina Fight for Their Marriage at the Board of Immigration Appeals, As NYC Celebrates Marriage Equality

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

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

Cristina Ojeda and Monica Alcota

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

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

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

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

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

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

 

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

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

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

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

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.

TOWLEROAD: White House Pushes Immigration Reform When Asked About Halting DOMA Deportations

See original post here.

Andrew Sullivan: DOMA Tearing a Marriage Apart

AmericaBlog: DOMA Rips Apart Married Binational Couples

QUEERTY: Cristina & Monica Face DOMA Deportation Hearing in December, They Need Repeal Now!

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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.