|Cristina Ojeda and Monica Alcota|
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Lambda is coming to Monica’s defense with a brief that argues that Adams v Howerton has been superseded by multiple intersecting legal and legislative developments since 1982.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.