Thursday, March 31, 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.

Tuesday, March 29, 2011

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

DHS Signals Quick End to Temporary Abeyance Policy For Green Card Cases Filed By Gay and Lesbian Couples, As Final Guidance Is Awaited


Update: "The Hold is Over," Metro Weekly, March 30, 2011.

Breaking News from Metro Weekly:

Excerpt below:
The announcement on Monday, March 28, that the U.S. Citizenship and Immigration Services had issued guidance instructing its field offices to put on hold cases involving same-sex, married bi-national couples seeking a green card for the foreign spouse sent shockwaves throughout the immigration and LGBT communities. Further clarification from Department of Homeland Security officials, however, suggests a much more limited, nuanced decision that leaves the issue unresolved and couples' futures in doubt.

On Monday afternoon, USCIS spokesman Christopher Bentley told Metro Weekly, "USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues."

Despite statements from leading organizations – most prominently, Immigration Equality – suggesting that the cases would be held in abeyance until DOMA's constitutionality is settled, a DHS official told Metro Weekly on Monday night that the abeyance could last for as little as a week.

"[P]ursuant to CIS’s routine practice when there's a new law or regulation that will potentially affect their resolution of certain cases, they hold [the cases] in abeyance until they get the final guidance from the general counsel’s office," the official said. "DHS expects this issue to be resolved imminently."

After that abeyance has ended, the official notes, "[I]n individual cases, USCIS has always had the authority to exercise discretion on a case-by-case basis, in light of the unique circumstances of that particular case."

Associated Press Interviews Noemi Masliah



"Noemi Masliah, an immigration lawyer for 35-year-old Monica Alcota, said the judge's decision to adjourn her client's deportation case until December gives the government a chance to fully review her petition for legal residency based on her marriage.

"The right thing to do, and this judge did do the right thing, is to adjourn this case and see what happens down the road," Masliah said. "Given that the law is so up in the air ... it's hard to enforce at this point in a negative way."

Masliah, who is part of a group trying to push the government to stop denying immigration benefits to same sex couples, said she hopes that all such applications will be put on hold indefinitely until the future of the Defense of Marriage Act is settled in court."

Full article here.

Together for 12 Years, Nick and Graham File Fiancé Visa Petition in Exile and take on DOMA

In the wake of the tremendous news from USCIS yesterday that it will accept green card applications for gay couples and put final decisions on those applications in "abeyance" or on hold temporarily, it is important to remember that as we take tiny incremental steps toward full parity for same-sex binational couples in the U.S., thousands of gay and lesbian couples have been forced into exile or separation over the years. The policy announcement yesterday does not bring those couples any closer to a solution that will allow them to return to live together in this country. It is it vital that we not become complacent; we must continue to tell our stories and stay fully engaged in the fight to end the cruel reign of DOMA. DOMA will continue to destroy families and tear apart married gay and lesbian couples until it is repealed or struck down by the courts. We must actively fight for its demise in both the court of public opinion and in Congress if we are finally to bring an end to the long nightmare suffered by tens of thousands of binational gay and lesbian couples.

Nicholas and Graham
Like many other couples who are married or in long-term relationships, Graham and I knew instinctively that we would be together forever from the moment we met on October 24, 1998. Graham was living in Florida on a valid visa and when we met he was in the process of changing visa status so that he could start a business. Unfortunately, that status change was never granted, and before long Graham's right to stay in the U.S. legally had expired. By then it was too late, for Graham and I were deeply in love and living as a couple. Of course we knew that if we were a heterosexual couple, there would be no difficulty. We would have married and after some paperwork and an interview the love of my life would have been given a green card, even if he overstayed his non immigrant visa status. But of course, that is the crux of the problem. Being a bi-national gay couple, we were about to experience 12 long years of cruelty courtesy of discriminatory immigration laws and the Defense of Marriage Act.

We understood how difficult life would be. Graham was unable to work, or obtain health insurance or enjoy any of the other privileges and protections that would be normally within reach for "lawful permanent residents" or "green card" holders in the U.S. Graham could not visit his mom back in the UK either, as he would not have been alowed back in the U.S. for at least 10 years. When his grandfather became terminally ill, his mother was forced to contend with this family crisis by herself, because Graham, her own child, was trapped by US immigration laws. As bad our circumstances were, the alternative was unthinkable. We were inseparable and utterly devoted to one another. We could not imagine a life apart.

As the U.S. citizen partner, I provided for both of us entirely, working tirelessly to build a life we could share, while my own government forced us onto the margins where our relationship didn't exist in the law. I had to give up a job I loved in a bookstore in order to make more money in a job I hated, insulating attics in the Florida heat. I supported Graham financially and emotionally and I was painfully aware that I was unable to sponsor him for legal status---not as my spouse, partner or fiancé----due to laws preventing same sex couples from doing so.

Despite the obvious hardships of being a bi-national same sex couple, we were happier than either of us had ever been in Florida. My family welcomed Graham with open arms and regarded him as my “husband.” Graham became a “son-in law” to my parents, brother to my older sister and older brother and an uncle to my nephews and neices.

Initially, on a tight budget, we lived with a roommate friend; it meant that Graham and I had to share a small single bed in a tiny room. It wasn’t much, but it was ours and it was bliss. Working hard and saving, I purchased our first home for us within a year of being together.

In February 2000 we had a commitment ceremony in Orlando. We knew it wasn’t a legal ceremony, but we had a Minister who was happy to perform the ceremony and lots of friends and family (my family in Orlando and Graham's Mom from England) were there to share our special day with us. We had two best men and six bridesmaids, one of which was my sister. It was absolutely wonderful and an event we will both cherish for the rest of our lives.

By 2003, it was time to take a step up the property ladder. We sold our house and bought what was for us our “dream” Florida home. The construction industry was still in a boom so I was making decent money. At the same time, as we reached our mid 30s we became increasingly aware that our future was uncertain. If I were to lose my job through injury or an economic downturn we would have lost our home. If I were to lose my life, Graham would have been left destitute and alone in a country refusing to acknowledge his relationship to me.

For almost seven years we lead a truly wonderful life, yet the fear of being separated never completely left our minds. We were always wary of being discovered, perhaps, in retrospect overly so. We were so afraid Graham would be found out that Graham even avoided medical treatment at times when he desperately needed it because he was too afraid to make his existence known to anyone. We were happy in our own little world, surrounded by family and close friends. Unfortunately all that changed in 2001 following the terrorist attacks in New York and Washington, DC.

Due to our location near to Walt Disney World, we couldn’t go anywhere without running into heightened security; police and security guards almost always asked for identification. Graham was so terrified that he became a recluse. So afraid was Graham that a routine security check would make his presence known to the immigration authorities that at one point he actually stayed inside my home for six months without ever leaving. Graham's health suffered and ultimately he had no choice but to see a doctor. He was diagnosed with agoraphobia and social anxiety disorder, which were attributed to the years of insurmountable stress and fear of living in hiding that climaxed during 2001.

We endured this life for a further three years until we could take the pressure no longer.

In 2004 we made the agonizing decision to leave the United States. There were many ways in which this was a hard choice, but what made it especially cruel was the fact that leaving meant Graham would be barred for 10 years upon departure from the U.S. as a penalty for overstaying his original visa (and, of course, Graham would not be eligible for a "waiver" as the spouse of a U.S. citizen) . It was like we were consigning ourselves to imprisonment abroad. In the U.K., where Graham is from, the government had instituted provisions recognizing same sex couples for the purpose of immigration. So we knew that was our only choice. When I say choice, I don't mean free choice. We were forcibly exiled there, it was the only chance we had to live as free, equal and dignified people with all the rights of any person residing in the U.K. We had to put an end to the hiding and the fear.

When I shared the news of our decision, my family in Florida was devastated. My mother had already lost two of her sons to muscular dystrophy and a daughter in an horrific motorcycle accident, and now, she felt like she was losing yet another child. My brother and sister were losing another sibling, and all for the simple fact that there is no recognition of same sex couples under U.S. immigration law. For Graham, it was heartbreaking to see how this decision affected both me and my family. I was being forced to move to a country that I had never even visited. I was leaving behind all we had ever known, and most cruelly, I was leaving behind my family.

We were forced to sell our home to pay for legal costs and moving expenses. All that we had built and loved came to an end. Our American Dream was over.

We left the United States in January 2005. I entered the UK on an Unmarried Partners Visa. In February 2006, we became “civil partners” which awarded us the privilege of becoming one another's next of kin under UK and European law.

Graham with Nicholas' mother
But life in the UK has not been easy. We have struggled to make a life for ourselves here and continue to do so. We miss our old lives so terribly. I miss my homeland and my family. I have seen my Mother perhaps three or four times in the last six years when she was able to visit us. Graham is not allowed to visit the US and financial restraints make it virtually impossible for me to visit. Leaving America was the hardest thing we have ever had to do. Part of our lives died the day we left and the longing to return burns as fiercely now as it did then.

We have been together for twelve years now and we have only been apart once in all that time when I returned to Florida for a visit to see my family after my stepfather was diagnosed with cancer. Understandably, my Mother was unable to leave her husband so she paid for my flight to return home. We had a huge family reunion, but the fact that I had to do this without my life partner by my side made it a bitter sweet affair. Everyone kept asking, “Where's Graham?” No one could believe that in this day and age we still have such archaic laws and notions about homosexuality. The short time I was away was almost unbearable for both of us, so reliant had we become on each other over the years. We spoke to each other twice a day on Skype, and we even had the webcam set up during the reunion so Graham could feel a part of it. Graham was happy for me that I was spending time with my family, but at the same time, he was heartbroken that U.S. law prevented him from returning to the United States to see the family of which he had become an integral part and which loved him so much.

My mom is 75 and my stepfather is 81. My stepfather had his colon removed due to cancer, which has now spread to his lungs and his brain. He is undergoing radiation therapy. A recent stroke has left the left side of his body practically immobile. My stepfather raised me from boyhood. He is the man whom I regard as a father. Now he is extremely ill and I cannot be there for him or to comfort and support my mother who desperately needs me there, because current US law prohibits this from happening. My mother underwent open heart surgery 10 years ago, and although she has recovered from the surgery, the strain of caring for her husband is putting her under immense stress, both physically and mentally. She desperately needs me back home. No mother should be put through such anguish and no son should feel so helpless to do anything to help. It’s such a heart wrenching position to be in. Unless you are going through something like this, you can't begin to imagine how traumatic this is for someone, knowing that you cannot be there to help and support your own mother, or to be with your stepfather in his fight for survival that few, if any, manage to win.

We have always longed to return to America, but now, more than ever, we really need to be there.  The only thing that prevents us from returning to our family is the Defense of Marriage Act. If this law were not in place, I would be able to marry and sponsor Graham, like millions of other Americans before me who are married to foreign nationals.

Graham and I were 27 when we met. This year, we turn 40. We are as close now as we have ever been. And are utterly devoted to one another. I cannot imagine life without him. He is my everything. He is my world. Yet he knows that were it not for him, I would be back in America, caring for the people I love. I left my home, my family and my country so that we could live without fear of being torn apart, but that life changing decision has come with a hefty price.

To be so utterly compatible with someone and to be so utterly in love, but told you cannot be together because you are the same gender is perhaps the cruelest thing anyone can do to a couple who want nothing more than to live their lives together, surrounded by their family in a country they call home.  We have joined this fight by filing a fiancé visa petition and we will work to urge an end to discrimination against all gay and lesbian binational couples who live in fear of separation or isolated in exile because of the Defense of Marriage Act.

Monday, March 28, 2011

USCIS Announces: Abeyance Policy is National - Green Card Applications Filed By Gay Couples Will Be on Hold, Effectively Halting DOMA Deportations For Now

Read "Game Changer" and Chris Geidner's Metro Weekly article (here) that broke this news this afternoon. It is vitally important that all couples obtain expert legal advice from immigration attorneys with experience on LGBT issues and DOMA. Also, it is important to note that the USCIS has not made a commitment to holding cases in abeyance for any specific length of time; this policy is discretionary and may be withdrawn at a future date.  For now USCIS is saying that abeyance is the policy as it waits "final guidance related to distinct legal issues."

Saturday, March 26, 2011

GAME CHANGER: Immigration Service to Accept Green Card Applications Filed by Married Gay & Lesbian Couples and Hold Them In Abeyance

[Updated 3/28/2011: Abeyance policy is national, but is temporary pending final legal guidance. Updated 3/29/2011: "Confusion Over Policy on Married Gay Immigrants," New York Times.]


As was reported Friday by Newsweek/ The Daily Beast, two United States Citizenship and Immigration Services (USCIS) District Offices have confirmed that alien relative petitions and green card applications filed by married same-sex couples will not be denied. Instead, final decisions on these applications will be held in abeyance, i.e. put on hold.  This historic first seems to be directly linked to the Obama administration's change of position on DOMA announced on February 23.  The DOMA Project welcomes the new and exciting potential this presents for married gay and lesbian couples to obtain legal status and prevent deportations of the foreign partner. However, in this new and rapidly changing legal environment, we urge attorneys and binational couples to proceed with an abundance of caution.

The significance of the "abeyance" policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in "pending" status, and second, this status will give protection and benefits to the applicant for an indefinite period. The "abeyance" policy, it is presumed, will put these cases on hold while the ultimate fate of DOMA is determined by a decision of the Supreme Court or through repeal by Congress.

This tremendous news comes after months of advocacy by national immigration law and policy groups, LGBT organizations and advocates including The DOMA Project. While The DOMA Project has focused primarily on stopping deportations, we have also engaged in wide-ranging advocacy and provided legal representation in related cases where couples are fighting separation or exile.

As readers of this site know, since July 2010 we have filed more than a dozen alien relative petitions on behalf of gay or lesbian American citizens for their spouses as part of our Stop The Deportations campaign.  Our campaign has been successful in slowing and stopping several deportations through a combination of legal strategies and aggressive advocacy efforts, including reaching out to members of Congress and working closely with executive branch agencies.

In the coming days and weeks, the attorneys at Masliah & Soloway, who launched The DOMA Project last year, will be filing green card cases on carefully chosen behalf of several same-sex binational couples who are not currently facing deportation proceedings.  We have been working for months with hundreds of binational couples in an effort to determine which couples are in the best position to file green card petitions and applications. For some couples, we believe that time is now.

This latest evolution in our strategy to aggressively fight for binational couples is the culmination of an 18-year long commitment by our law firm⎯led by two gay immigrants⎯to fight for an end to discrimination against lesbian and gay binational couples.

USCIS District Offices to Accept Green Card Applications 
from Gay Couples and Hold Them in Abeyance

What does this mean for an estimated 36,000 binational couples?

Some married gay and lesbian binational couples will now have an opportunity to take a major leap toward full equality under our nation's immigration laws.  However, it is important to remember that DOMA is still the law of the land and despite this tremendous news, filing green card applications in this uncertain environment could result in a foreign spouse being placed in removal (deportation) proceedings. For that reason, no couple should make a move toward marrying or filing on the basis of the marriage without first consulting an immigration attorney with specific expertise in both LGBT immigration issues and the developing landscape of DOMA.

Generally, the risk all couples face if they chose to file is that they may ultimately be placed into removal proceedings. Because the announced policy is one that was developed at the discretion of the District Directors of the offices involved, it is not yet known whether this policy will be extended nationally nor whether it may be changed in the future. Again, it bears repetition that couples and their attorneys must proceed with extreme caution.

This development will have the greatest impact on two groups of couples:

1. Married gay and lesbian couples where the foreign spouse lawfully entered the United States but is now an "overstay" and without lawful status.  For these couples, the filing of an alien relative petition and application for adjustment of status to permanent resident should automatically give temporary lawful status to the foreign spouse for the duration of the period that the case is pending. If these applications are in fact held in abeyance until DOMA's final demise, this could mean that couples who have wrestled for years with the nightmare of deportation, separation and instability caused by a lack of lawful status may now be on the verge of a new reality.  The foreign spouse will not only receive (temporary) lawful status, but also employment authorization and potentially other benefits, as long as they have a pending green card application.  Unfortunately, despite the temptation that this will present to many couples, for many it will be better to wait until there is greater certainty about this policy and the future of DOMA.

2. Married gay and lesbian couples who are already facing removal (deportation) proceedings. It is now likely that we will be able to stop virtually all deportation proceedings involving married gay and lesbian couples who have filed green card petitions/applications and who are, but for DOMA, otherwise eligible to receive a green card based on their marriage.  Even couples in removal (deportation) proceedings must proceed cautiously when considering whether to marry and file a green card petition/application based on that marriage.  However, unlike those who are not in proceedings, the risk of deportation is very real, and the likelihood is that this new development will provide protection to almost every couple facing deportation, if they are currently in proceedings.

There is light at the end of the tunnel for binational couples.  The individual stories of binational couples suffering separation, exile or the threat of deportation continue to be our most important weapon in the fight against DOMA.  There is still a long road ahead before we achieve full equality and we cannot be complacent.  

Please contact us at stopthedeportations [at] gmail.com if you want to get involved in our work or if you have any questions about the new "abeyance" policy.

[Update: March 29, 2011: It now seems certain that the temporary national abeyance policy announced March 28, 2011 will end shortly. Government attorneys working on final guidance suggest that USCIS will retain case-by-case discretion but will not be permitted to put on hold indefinitely all green card applications filed by married gay and lesbian couples.  The DOMA Project will continue to advocate for a uniform abeyance policy, for the interim period while DOMA continues to be enforced.]

Friday, March 25, 2011

CNN: Argentine Lesbian Escapes Deportation Until Status of Same Sex Marriage Made Cleaer

"An Argentine woman living illegally in the United States after overstaying her tourist visa will not be deported until the legality of her same-sex marriage is made more clear.
Judge Terry A. Bain and government attorneys agreed Tuesday to halt deportation hearings in Manhattan's immigration court for Monica Alcota, 35, who came to the United States from Argentina more than 10 years ago.
Alcota and Cristina Ojeda, 25, a U.S. citizen, were married in Connecticut in 2010 and are arguing that their marital status should allow Alcota permanent residency, their attorney, Lavi Soloway, said. The Connecticut Supreme Court has ruled that gay and lesbian couples have the right to get married.
Soloway said no specific reason was given for the judge's decision to delay the hearing, but added that Bain and the government attorneys were in agreement with several general reasons, including President Obama's direction to the Department of Justice to enforce, but not defend, Section 3 of the Defense of Marriage Act (DOMA). The act defines marriage as the union between a man and a woman."

Henry and Josh Speak About Their Fight Against DOMA and Deportation on WZBN-NJ News

This is the best quality video we have at present. We will update this post at a later date.

Thursday, March 24, 2011

Married Binational Lesbian Couple Forced into Exile with 3-Year-Old Matthew Because of DOMA

I knew it was going to be a magical year when I stood at the top of the Hill in South East London with my friends, watching the fireworks above Central London on NYE, and as the bell chimed 12, it started to snow. Precisely at midnight.

Three weeks later, having just returned from travelling in Borneo, I was feeling bored one evening, so decided to head out to a women's night with some friends. As I recall, they took a bit of persuading but eventually a plan started to take shape and they arrived to pick up my roommate and me. Becs was in the back of the car. We had met a few times in 2009 and socialized with the same group, but our communication had been limited to saying hello in passing. (Of course, I'd always thought she was hot!)  Neither of us were looking for a relationship at that point. I wasn't that evening in January either, but wonderfully, cupid struck.

From that moment on Becs and I were inseparable. We moved in together shortly afterwards and Becs was there proudly holding my hand and surprising me with a room filled with balloons as I celebrated my 30th birthday with my nearest and dearest.

Becs job was in transition (coincidentally she worked in the same building as I did, although for a different company) and we didn't know where she would be, so we were initially living for the moment, not knowing where our time together would take us. I also knew that Becs had a 3 year old son and was arranging the custody situation.

We decided to take a weekend trip to Amsterdam in March 2010. I'll never forget that weekend; the hotel was diabolical. We had to shower in a cupboard within the room and the room itself was at the top of about 4 wonky flights of very steep stairs AND the size of a postage stamp. But the view of the canal was breathtaking and it was this weekend that Becs told me that she loved me, and I in return told her that I loved her too. (Unbeknownst to me, Becs had spent much of my birthday party telling my family this very fact!)

If I am honest, we knew from the start we were falling in love with each other, but it was scary to admit it not knowing where the relationship would go. We did know that we wanted to make it work - no matter what. We've both had long term relationships before, but when you meet the love of your life, your soulmate, the person for you - you just know.

Fast forward to May, Becs although in the UK on a Tier 1 Highly Skilled Migrant Visa, has to go back to Texas to sort out the custody situation and is required to remain in Texas throughout the proceedings. We don't know how long it's going to take.

Meanwhile, I stay on in the house in London and continue to work. We survive each day by emailing and Skyping at night. You know, they should employ us as laptop testers, we put our two through some serious use. Every single night without fail, we would Skype and fall asleep with our Skype up and running on our beds, so we could be as close as we could be. I would love waking up in the morning and watching her sleeping - but equally would be reminded with overwhelming sadness at not being with her. We would potter around at the weekend, doing jobs around the house and chit chatting to each other as though we were in the same room and watch movies together, starting them on our laptops at exactly the same time, whilst keeping our Skype windows open so we could see each other’s reactions. I’d take her on my laptop to friends houses and the pub. And don’t get me wrong, whilst Skype is marvellous - it's no substitute for the real thing.
The little things that others take for granted are so important, like being wrapped up in a hug at the end of a difficult day, taking in your partner's familiar smell and just knowing things will be OK, a little cheeky wink while you are out socialising with friends, being able to fall asleep at night in the arms of your loved one, sharing the washing up, or even arguing about who wants to do it!
Skype, in fact, allowed me to be there to help celebrate Matthew's* (my step-son) 3rd birthday. Though it would have been a much happier event if the group picture had been of me with the rest of the family, and not the family and a computer screen.
Unable to bear being apart, I flew over for 8 precious days with Becs in August 2010. On the 21st of August, in Becs' Mom's living room and in front of her Mom, Becs got down on one knee and proposed to me (I actually thought she was giving me a tacky picture frame as a present and making a big ol' deal out of it!!) And as my friends and family will agree - I've NEVER been happier.

It was a tremendously sad day when we had to part and I had to hide myself in the toilets of the airport once through security until I could stop the tears, but we were hopeful there would be some resolution on the custody case.

Unfortunately, this was not to be. So we made a decision - that if Becs was going to be in the U.S. for a considerable amount of time - I would be there with her. Thinking this would be a straightforward process; I did a bit of research and was gobsmacked to see that as a couple in a same sex relationship, we didn’t have the same rights afforded to us as heterosexual couples do. Heterosexual couples could apply for a fiancée visa, sponsor their partner; they could in essence just order a mail order bride from the internet - and Becs and I, in a loving and committed relationship with children involved, we're not afforded the same rights. How is it that Becs, a tax paying, law abiding U.S. citizen cannot sponsor her fiancée to be with her?

I think this was about the same time the 'It gets better' Campaign was being launched after all those tragic suicides and all I could think to myself, after discovering there was NO way for us to be together was, does it? Does it get better?

Finally in November, we couldn't bear the 6 hour time difference, the late nights; emotionally and financially it was taking its toll on our family. I handed in my notice, moved from our house, back in with my mother (at 30, having moved out at 16, this was a pretty desperate thing to do) and applied for a B2 Tourist Visa. We met the criteria as far as I was concerned.

Having lived in the UK for all of my life - I could show strong ties to the UK. So armed with my declaration that stated I absolutely didn’t want to live in the U.S., but that my partner was going through a custody battle so I wanted to be there to support her, the fact she had a UK Tier 1 Visa, and the fact we had a home to return to, and of course her job - I applied. It was a lengthy and fairly intimidating process and I was immediately turned down for not showing strong enough ties to the UK. I broke down outside the embassy in London. The fact hit me, I couldn't be there to hold Becs' hand during one of the most difficult and stressful times of her life.

I had to return to work immediately afterwards, but was sent home by my boss when I got in; she could see I was devastated. I didn’t even need to say the words to Becs, when I had called her from the pay phone outside of the embassy, she could tell by the way I was breathing.

That weekend, I shut myself off from everybody. I couldn’t see an end to this depressing way of living. Ultimately, we want our family to be in the UK - but if we can't in the meantime, then we should be allowed to live/stay in the US - just as any other heterosexual couple can. WE should be allowed to make that decision based on what is best for OUR family.

Immediately after the B2 Visa denial, I applied for ESTA. Their website said they had to consider it because of my B2 denial. And they got back to me a day later confirming that I could enter the US, but that the final decision would be made at the border. They would let you spend your hard earned money, to be met at the border and sent home. I can't even think of anything crueler.

Now, I despise flying. I have a huge fear of it, and rely heavily on valium to travel, but even the valium wasn't helping my nerves. I flew via another state to break up the flight to make it easier, but it was literally the most nervous I have been, knowing that they could want to question me further and had every right to send me back on a flight that very day. It was a strange mixture of anxiousness and desperation to see my fiancée. I was terrified of my own reaction to the news I wouldn't be allowed in - and I think that my friends and family were too.

I don’t know if God or somebody up there was looking out for us that day-but thankfully it passed without incident. However, I don't expect it to be like that next time and I spent a few days trying to get over the stress of it and relax and be with my family again.

We spent 3 months together, in her Mom and stepfathers house, whilst we were tying up the legal arrangements surrounding her sons custody. There wasn’t a day that didn’t go by, when I didn’t hear the familiar tick tock above my head, reminding me that I only had X amount of days left before I would have to leave without Becs. Every happy occasion was tinged with sadness, even as I sat and watched my Fiancée and stepson decorate the Christmas tree with my in-laws I couldn’t help but think to myself ‘what if we’re not together next Christmas’. The thought of having to part with your loved one at the airport is hard enough; not knowing when you will see them again is too much to bear. Becs and I married in Boston in December. We were virtually surrounded by friends and family – who were logged on around the world, watching via streaming video and overjoyed to be a part of our day. One day, when we have a home established somewhere and our family is settled - we will have the big wedding like the one we always imagined. Of course, our marriage will be recognised in the UK as a civil partnership, so it will be recognised whenever we are there, but nothing at all will change for us when we are in the States; as far as the U.S. is concerned, we’re strangers despite the fact we share the same surname.

There are 36,000 other families being affected in this way and I wish more would come forward and share their story - our voices; our stories NEED to be heard. Instead we live in fear that sharing our stories means we are more likely to be stopped at immigration and turned away.

My family loves Becs and I know that Becs' family love me in the same way; we are so lucky to be surrounded by support. We are not criminals; we work hard and are good people. Why should our family suffer in this way? We consider ourselves extremely lucky in that we were only apart for 4 months; but during this time, we were officially homeless and our life was in limbo while we were forced to live in separate countries. The Defense of Marriage Act (DOMA) is to account for this.  DOMA must be defeated, please help us and tens of thousands of other couples facing separation and exile by contacting your Senators and members of Congress and urging them to support the Respect for Marriage Act.

Wednesday, March 23, 2011

QUEERTY: Possible DOMA Repeal Stops Deportation of Monica Alcota

From the website Queerty.

NY Daily News: Gay Woman Won't Be Deported, Couple Can Pursue Their Marriage Based Case

Read full article here.


Judge Terry Bain put a hold on her deportation order while the couple waits to see if the Defense of Marriage Act is overturned and their green card application goes through. "She could have said no," [Cristina] Ojeda said. "But instead she gave us time. Little by little, we're building up hope and more courage." The couple will be back in court in December to give the judge an update on their case.
"I was very pleased that both the judge and the government attorney treated the issue with seriousness and respect," said their lawyer, Lavi Soloway.
"I think it was a demonstration of respect for Monica and Cristina and their marriage. They were kind and generous about it."

Tuesday, March 22, 2011

Gay City News: Monica & Cristina Win in Court

The DOMA Project thanks Paul Schindler from Gay City News for coming to court with us this morning and reporting on this historic day. Full article here.
“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.”

Queens Congressman Joseph Crowley: Obama Administration Should Halt DOMA Deportations

From the Advocate:
Rep. Joseph Crowley, a New York Democrat whose district includes a section of northern Queens, praised the government's decision to suspend deportation proceedings against Alcota.

“In any case involving a married gay couple where one person is [a citizen] and the other person does not have legal residence, the government should suspend deportations," Crowley told The Advocate in a brief telephone interview. "Ultimately the DOMA law needs to be repealed. But what’s paramount is that families need to be able to stay together."

Crowley joins two congressional colleagues — Reps. Zoe Lofgren of California and Jerrold Nadler of New York — who have called on executive agencies to stop deportations involving married, binational gay couples who are denied permanent resident sponsorship rights as a result of DOMA.

Immigration Judge Grants Reprieve, Allows Monica & Cristina To Pursue Marriage-Based Immigration Case

Monica and Cristina expressed relief and optimism after leaving court
This morning, Monica Alcota and Cristina Ojeda, became the first married, same-sex, binational couple to successfully argue that deportation proceedings should be adjourned until their marriage-based immigration case had been fully adjudicated. The Immigrations and Customs Enforcement attorney and the Immigration Judge agreed that the couple should be given an opportunity to fight for a green card on the basis of their marriage and generously adjourned proceedings accordingly.  During their brief appearance in court, the discussion centered on an acknowledgement that the couple may have a long road a head of them, but that they should be allowed to pursue their case with U.S. Immigration and Customs Services, the administrative agency that processes marriage-based petitions.  Monica and Cristina will report back to the Judge in December to notify the court and the government attorney of the status of their case.  This is a tremendous victory for The DOMA Project and we hope it will signal a shift in how similar cases will be handled in Immigration Courts across the country.

Given the latest developments concerning the Defense of Marriage Act---the administration's new positition regarding the unconstitutionality of Section 3 of DOMA, their refusal to defend DOMA in federal court challenges, and the introduction of DOMA repeal legislation in both Senate and House last week---there was a palpable feeling in the courtroom that we had collectively crossed a threshhold to a new era in which a lesbian couple's marriage, while not legally recognized by the federal government, could at least be respected. And in according this couple the respect they deserve, the Immigration Court has moved us one small but significant step closer to equality.

Read more about Monica and Cristina's fight against DOMA and deportation here and here.
Excellent reporting from The Adocate and Gay City News.

Monday, March 21, 2011

Monica & Cristina Will Ask Immigration Judge Tuesday to Terminate Deportation Proceedings

Last October we brought you the story of Monica and Cristina, a married, binational couple from Queens, New York who are facing the very real prospect of being torn apart by deportation. On Tuesday, they will become the first couple to face an Immigration Judge and challenge deportation proceedings in light of the Obama administration's changed position toward the Defense of Marriage Act (DOMA).

What Monica and Cristina will do on Tuesday is historic. They will ask not only that Monica should not be deported to Argentina, but also that the government agree to terminate proceedings against her, so that they can continue their fight for a green card for Monica on the basis of their marriage without deportation proceedings hanging over them. Although this is the first time such a request has been made since the administration's abandonment of DOMA, it is consistent with existing guidelines that require Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion in certain deportation cases. With this request to terminate proceedings, as with their fight against DOMA itself, Monica and Cristina are not asking for anything other than to be treated with fairness, dignity and respect.

Of course, if not for DOMA, this story would have ended long ago. Cristina, a U.S. citizen, would have successfully petitioned for Monica's green card. It would have been a straightforward process regardless of the fact that Monica had over-stayed her entry as a visitor by many years. That is because our  immigration laws, which are designed to keep families together, prioritize spouses of U.S. citizens above all other relatives. DOMA unconstitutionally excludes Monica and Cristina from this process only because they are a lesbian couple.

When Monica and Cristina confront the cruelty of DOMA in Immigration Court this week they will be accompanied in spirit by two powerful allies: Barack Obama and Eric Holder. Monica and Cristina will be the first married, same-sex binational couple to confront DOMA in Immigration Court since the President and the Attorney General announced their conclusion that DOMA is unconstitutional and informed the Speaker of the House that the Department of Justice would no longer defend DOMA in federal court challenges. Monica and Cristina will argue that given the government's new position, continued deportation proceedings against a married, binational same-sex couple are unfair, unnecessary and inappropriate.

Monica and Cristina have experienced an emotional roller-coaster for the past three years. Like other couples, they met, fell in love and decided to move in together. Almost immediately they struggled with Monica's immigration status. Their hardest days came in July 2009. Cristina had finished grad school in Buffalo and the couple made one last trip there to move her remaining belongings to Monica's apartment in New York.  They bought tickets for an express bus, but at the last minute they heard the announcement that the bus would be making local stops. A few hours into the ride, every binational couple's nightmare unfolded before Cristina's eyes.  In Rochester, Border Patrol officers boarded the bus for a routine check of identification papers. Monica was pulled off a bus and taken into custody.  That lead to Monica being held for more than three months in detention in Elizabeth, New Jersey.  Cristina traveled hours to visit Monica as often as possible, trying to keep her spirits up. Those visits were heartbreaking. Cristina and Monica was reduced to speaking on a telephone through a plexiglass window.  They tried to stay strong, but many tears were shed during those months. Finally an Immigration Judge ruled that she could not be deported without a hearing, and she was released from detention in October.

DHS' receipt for Cristina Ojeda's petition for Monica Alcota refers to Monica as the spouse of a U.S. citizen

It took a while for Monica to recover from the trauma of being held in what is essentially a jail, with limited privacy and very little contact with the outside world. After returning to their home in Queens, the couple started to consider their future together and decided to join Stop The Deportations -The DOMA Project. They participated in a rally for Marriage Equality in September 2010, their first ever act of public protest, carrying signs that read "Don't Deport My Wife!" and "Recognize our Marriage as Equal." They stood courageously with other binational couples at the podium as one member of that group eloquently spoke of the pain of living under constant fear of separation. Monica and Cristina themselves had married in Connecticut that summer, and decided to speak to the press and tell their story.  Cristina filed a marriage-based alien relative petition for Monica, the first step in a long-term battle for a green card. In October, The Gay City News published a detailed article featuring them and one other couple fighting deportation. Shortly after the Administration announced its new position on DOMA on February 23, Monica and Cristina were interviewed on the Spanish-language program Pura Politica with one of The DOMA Project founders, attorney Noemi Masliah, who is also a member of their legal team.

Tears of happiness on the wedding day
Monica and Cristina are fighting on behalf of all binational couples who live in fear that they might one day be battling deportation, surely the cruelest impact of DOMA.  Until it is repealed by Congress or struck down by the Supreme Court, DOMA will remain the law of the land. Monica and Cristina will be arguing to the ICE attorney and the Immigration Judge that it is wrong to move forward with the deportation of the spouse of an American citizen when the only obstacle to a green card for that person is a law that the President and the Attorney General believe is unconstitutional and refuse to defend.

Termination of these proceedings does not confer a legal "benefit" on this couple and it does not put ICE at any disadvantage; in fact, ICE can request that the court reinstate proceedings at any time in the future. Importantly, termination of proceedings does not contradict the Executive Branch's constiutional obligation to enforce all laws including DOMA. Administrative termination is nothing more than an exercise of prosecutorial discretion, a necessity for prosecutors who must allocate scarce resources according to specific agency priorities and objectives. ICE, through several memos over the years, has established that sympathetic humanitarian circumstances and family unification are two criteria upon which a favorable exercise of prosecutorial discretion, including the termination of proceedings, can be based. Monica and Cristina will urge the government to look carefully at its own guidance for exercising discretion and apply those criteria to their case.

Prosecutorial discretion has been used by this administration for vulnerable groups (e.g. for widows of U.S. citizens in 2009 and for DREAM Act eligible young people in 2010) to further important public policy goals and address humanitarian need while corrective legislation has been pending in Congress.   With DOMA repeal legislation now pending in both the House and Senate, immigration advocates and some members of Congress (Rep. Jerrold Nadler and Representative Zoe Lofgren) are calling on the Obama administration to develop policy to halt deportations involving married, same-sex binational couples.  Monica and Cristina need your help to enlist the the support of more members of Congress to call on the administration to halt these deportations.

Thursday, March 17, 2011

The DOMA Project Founders Interviewed


DOMA Project founders, Lavi Soloway and Noemi Masliah, were interviewed for the radio program "Same Sex Sunday" on March 13, 2011 about the state of the campaign for binational couples since the dramatic news that the Obama administration would not longer defend Section 3 of DOMA in federal court challenges.

Wednesday, March 16, 2011

Exiled in Ecuador, Brad & Raúl Try to Plan for a Future Together

Brad and Raúl
We first posted Brad and Raúl's story back in November. Recently Brad contacted sent us this update.

July 29, 2010 was a bittersweet day. That day was the culmination of my two years as a Peace Corps Volunteer in Ecuador. I had a lot to be proud of. Over those two years, I facilitated a number of parenting and life skills workshops in the schools of my community. I even helped a local volunteer committee raise additional funds to build an elder care facility for the elderly of my community. Within the Peace Corps community, I played an integral part in the re-establishment of the LGBT Interest Group, a group that continues to foster a safe and inclusive environment for LGBT volunteers in Peace Corps/Ecuador. Though it’s easy to get caught up in such achievements, I was also aware of the people I was leaving behind, not the least of whom was Raúl, my wonderful partner. In my original post, I presented just some of the ways we were there for each other through thick and thin. Because of my relationship with Raúl, not to mention the members of my community, July 29, 2010 was not an easy day.

In spite of our impending separation, Raúl and I had hope. We had applied for a tourist visa so that he could go to the US and spend the holidays with my family. We were both anxious for him to meet my family as I have had the privilege to meet his on a number of occasions. As I described in my original post, the visit was not to be. The U.S. Consular Officer summarily dismissed Raúl’s application due to his inability to demonstrate sufficiently strong ties to Ecuador.

In the months following that September rejection, we spoke over the phone every day. Raúl never failed to ask about my family, my two part-time jobs, and my graduate school applications. Naturally, I was always eager to hear about his family, his work and his English studies.

In November, we decided to invest in a local café in Cuenca, the major colonial town in southern Ecuador where Raúl and I met and grew in our relationship. For about a month and a half, Raúl worked his job in construction and at the café in the evenings. We knew it would be difficult, but after some consideration, we both decided it was something we wanted to do. As the owner of a business, we also felt that this venture may strengthen a future visitor visa application. I did my best to encourage Raúl and assured him that I would soon be there to help.

Brad and Raúl with Raúl's niece
On January 8, at about 5:00 a.m., my flight touched down in Guayaquil’s International Airport full of anticipation. After 5 months of separation, I was about to be reunited with the man I love. At the airport, we embraced each other for a long time, trying not to cry. Surely we drew some stares, but we didn’t notice. After spending a day in Guayaquil, we spent a few days at the beach, celebrating our reunion and our one-year anniversary as a couple. It seemed so surreal. After 5 months, it seemed like we had hardly missed a beat. In spite of the very real pain of being separated, we were able to get to know each other in new and exciting ways. We definitely grew as a result of the experience.

A few days later, we returned to Cuenca, where I was to begin my current job as a Regional Coordinator with Community Enterprise Solutions (CES) in Ecuador. Thanks to CES and their partnership with a local Spanish language school, I was able to obtain a visa to live and work in Ecuador for one year.

In spite of the time I spend away from Cuenca while traveling with CES, Raúl and I continue to grow as a couple. Six days a week, we work together to run our café, Black and White. After leaving the office of CES, I open the café at 6:00pm while Raúl prepares dinner to bring to Black and White. Depending on the night, either one or both of us stay till close. Every month, we enjoy more and more success. Soon, Raúl will be able to devote himself full-time to the café, giving us more time to be together.

Managing Black and White has certainly been a challenge at times, especially since it takes up most of our free time. Fortunately, we have been able to manage the stress by maintaining an open and respectful dialogue and enjoying every moment we can. This month, we were able to escape and visit Raúl’s family for Carnaval!

Raúl and Brad at their café in Cuenca
As for the future, Raúl and I aren’t certain what it holds for us. In August, I will return to the US to spend time with my family before beginning a PhD program in Psychology. Acceptance and rejection letters have already started to arrive from various schools. As was the case last summer, we hope that Raúl’s visa application will be approved. Though the odds are against us, we hope against hope that we will both be able to attend my grandparents’ 50th wedding anniversary, to which Raúl has been invited.

Aside from Raúl’s visa application, we are, like so many gay binational couples around the world, also holding out for a groundbreaking decision regarding the Defense of Marriage Act (DOMA). During my “exile” I have followed almost obsessively the latest developments on the marriage equality movement and in particular the DOMA challenges. I could hardly contain myself the day I read about President Obama’s decision to stop defending the discriminatory law in court.
I believe that DOMA will be overturned or repealed in the near future, but the nagging question for us is: will it be soon enough for Raúl and me? How long will our approaching separation last this time? Will we be able to join the rest of my family for my grandparents’ 50th wedding anniversary? Will my parents get to meet Raúl in person before we hit the two year mark in December? Will I have to choose between my career and the man I love? DOMA has separated far too many families like mine for far too long. I hope that soon it will be a thing of the past. I hope Raúl and I will get the fighting chance we deserve.

Tuesday, March 15, 2011

In Miami, Maria & Lulu Fight Deportation in Desparate Struggle to Stay Together

I arrived to this country from Venezuela over 10 years ago, looking for a better life and a better future. Living in Venezuela was not easy, not only because I am a lesbian, but also because I had actively opposed to the Chavez government from inception because of it violated the liberties and freedom of speech of its citizens.  Once in the United States, I had the freedom to completely and freely come out of the closet, to have a job and work hard towards my goals of one day have a college education and build my own family. I worked many at many jobs. At one point people used to say that I’ve had a job for every letter of the alphabet. I learned how to speak English. I learn this culture, I learned to love this country as if it was my own, and I also fell in love.

My partner, Lulu, and I live a life just like any married couple, we rely on each other for everything.  When times have been tough, we have weathered all the difficulties together. When we get a break, we enjoy, laugh and relax together, and during the saddest of times we have also cried together. Our commitment to each other is much stronger that the many pieces of papers and legalities we’re not allowed to be a part of.

Times have been extremely rough with this struggling economy. We have gone through layoffs, barely making ends meet, so our dream of getting married has sadly been sitting in the back seat of our car which is full of to-do’s (because we live in Florida, so we must travel to a state where we can get marriage licenses). Still it is a high priority for us.  We hope to marry soon. Although we know that our marriage will not be recognized federally and we know all too well that it may not help in my battle against deportation, we will get married. We will get married because is not about immigration or taxes or any other benefits for us. It's because we love each other.  I don’t want to refer to Lulu as “partner” or my “girlfriend” for one more day. I want to call her my wife and for it to be real.

For the past few years, I have been battling an asylum case before the Miami immigration court based of all the terrible things that happened to me back home. My final hearing is scheduled for this summer. On that day it will be decided whether I can stay in this country. During this journey I had the help of people who gave me support and love before I met the one I call today my wife. My struggles to remain in this country legally have always seemed never-ending, but I am an optimistic person, together with Lulu we know our love can overcome everything life throws at us. We have had our fair share of challenges in the three years since we met.

Now I am confronted with new obstacles. My mother, who lives back home in Venezuela, has been diagnosed with brain tumor. If it were not for DOMA, Lulu and I could get married and she could file a petition and sponsor me for a green card. I wouldn’t have to suffer the impediments of being trapped here and barely able to make ends meet, fighting my immigration case and an unable to help my mother properly.  If DOMA was gone, I could finally live without the daily fear of being torn apart from the one I love, and we would live a life where we can concentrate on the hard enough day-to-day challenges without immigration or our DOMA being among them.

When we talk about our situation to friends and family, they are simply in disbelief that our current system doesn’t allow Lulu to sponsor me, they simply can’t believe that just by getting married the issue is not solved.  Most people  just don’t know about all these things unless they know someone in the specific situation and it has been explained to them.  That is why we have to spread the message to all voters so that people realize that DOMA is not simply a  “gay issue.”  The cruelty of DOMA and the struggle of binational couples is a social and a civil rights issue.  It could be your sister, your brother, your son or daughter in this situation.  Please help us fight for repeal of DOMA.

Monday, March 14, 2011

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.

Thursday, March 10, 2011

Masliah & Soloway: Dueling with DOMA

Full story here.

"Two New York attorneys have taken up arms in the battle for immigration reform and gay marriage equality. US Immigration lawyers Noemi Masliah and Lavi Soloway are committed to fixing what they see as a broken country.

These high-profile attorneys, who are fighting to keep gay couples and families together, are prominently operating at the nexus of two of the most politically charged issues on the American public agenda: immigration reform and gay marriage equality. Their New York based firm is prominent in the US on issues affecting the unification of gay and lesbian binational couples and in handling sexual orientation and gender identity-based asylum claims.

Last summer, they decided that the time was right to launch an attack on US immigration laws and the federal Defense of Marriage Act (DOMA), in an attempt to keep binational lesbian and gay couples together. Passed in 1996, DOMA defines marriage as the legal union between one man and one woman.

Masliah and Soloway say they expect to bring a suit against agencies of the federal government within two years.

Masliah & Soloway were among the founders of Immigration Equality, a non-profit organization begun in 1994 to provide protection and advocacy for LGBT (lesbian, gay, bisexual, and transgender) immigrants. “When Noemi and Lavi created the organization, they committed themselves to filling a void. There were scarce resources and virtually no identifiable advocates in this area. They were pioneers and they continue to do crucial work,” Joseph Landau, an associate professor at Fordham University School of Law and the current board chairman of Immigration Equality and the Immigration Equality Action Fund, tells The Report."

Immigration Equality continues to grow in response to the legal needs of LGBT asylum seekers, although homosexuality and HIV-positive status are no longer grounds for barring individuals from entering the US. Masliah and Soloway are no longer directly involved with the organization, but in founding it, “they identified a cohort of attorneys who could represent this underserved population. Then they helped shape the legal fabric by drafting and consolidating critical materials, training other lawyers and promoting the issue generally,” Landau says."

Two judicial decisions convinced them that “the time was right to act,” explains Soloway.

The first was by District Judge Joseph Tauro in Massachusetts, in which he ruled that Section 3 of DOMA, which denied federal benefits to same-sex couples, is unconstitutional. Tauro’s opinion regarding the motive behind DOMA was the most relevant: “Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution will not permit,” the judge wrote.

In the second case, District Judge Vaughn Walker in California handed a victory to the opponents of California’s Proposition 8, which had amended the California state constitution to define marriage as being solely between a man and a woman, and ruled that it was unconstitutional under both the due process and equal protection clauses." See more here.