“There’s no rule on how long it takes an agency to process a case – they have the discretion to allocate their resources so they should work on high-priority cases,” explains Lavi Soloway, an immigration attorney who has filed 10 cases involving foreign-born same-sex spouses who are in deportation proceedings.
Soloway saw an opening back in July of last year after federal district court Judge Joseph Tauro struck down section 3 of DOMA as unconstitutional in two high-profile challenges to the law.
“We felt that it was the right time to begin reframing the issues that bi-national couples deal with as issues that relate to DOMA,” said Soloway.
In the past, gay bi-national couples had primarily looked to the legislative branch for relief through legislation that would allow American citizens to sponsor their foreign-born same-sex partners. But by focusing on DOMA in the context of immigration courts – which is part of the Department of Justice – the issue would be placed squarely with the executive branch rather than leaving it entirely up to Congress.
“The primary mission is to stop the deportations, and the power to immediately stop the deportations lies with the executive branch; therefore, the appropriate place to bring this advocacy is in the immigration courts,” Soloway explains.
Following the Tauro decision, Soloway specifically sought out same-sex couples in which deportation proceedings had already begun for the foreign-born spouse in the relationship. He limited his cases to those individuals specifically because he did not want to draw anyone into a proceeding that might endanger them.
But by filing an I-130 on their behalf, he was deliberately using the petition as an advocacy tool.
“It was understood by every couple that the likelihood would be that their petition would ultimately be denied,” he said. “But in that denial, would be the first tangible evidence of the federal government actively discriminating against them because they were gay.”
But by January of this year, only one of the 10 petitions he had filed on behalf of his same-sex couples had been denied. That’s when Soloway began to wonder if the government had suspended adjudication of those cases.
“By the time the Newsweek story broke, we were beginning to suspect that the I-130s were taking a little longer to process than usual,” he said. After word spread of the temporary hold, Soloway’s firm received approximately 200 calls and emails from gay bi-national couples.
“They were almost all the same – a couple that wanted to know if this was finally a time that they could file a green card application on the basis of their marriage,” he said. But Soloway feared that identifying anyone in an application who might be staying in the U.S. illegally or even on a temporary visa could put them in jeopardy.
“I advised them that the risk of filing, even with this encouraging news, was that the individual could be placed into a removal proceeding,” he said.
After CIS announced the hold was over, another of Soloway’s I-130s was denied.
But one of his cases produced a positive result. An immigration judge in New York adjourned the deportation proceedings for Monica Alcota of Argentina due to the legal ambiguities surrounding DOMA and the fact that the sponsorship petition filed by her American spouse, Christina Ojeda, continues to be processed.
Overall, Soloway’s advocacy appears to have helped focus attention on the issue since he filed 10 cases in total and CIS spokesperson Chris Bentley estimated the number of cases once held in abeyance at 10-20 nationwide. It’s worth noting that, typically, same-sex bi-national couples wouldn’t have been filing I-130s at all since they were almost certain to be rejected.
The government’s decision to resume processing the cases has raised the question of whether the executive branch should be deporting a legally wed foreign-born spouse based on a law that the president himself has declared unconstitutional.
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