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Tuesday, March 1, 2011

Gay Binational Couples Fighting Deportations On Obama's New DOMA Stance

Posted By on Tue, Mar 1, 2011 at 7:15 AM


Gay couples are already using President Obama's new stance against the Defense of Marriage Act as a weapon to fight deportations of their foreign spouses. The couples hope that the administration's declaration last week that the law that defines marriage as only between a man and a woman is unconstitutional will help defer or ultimately save the foreign half of the couple from deportation.

As we wrote in a cover story last year "Worlds Apart," gay couples in which one partner is a U.S. citizen and the other an illegal immigrant, have always been locked in a legal impasse. While marrying a U.S. citizen is usually the most expedient way for straight illegal immigrants to get a green card, gay couples have no such remedy because of DOMA.

Starting last summer, the New York and Los Angeles-based Masliah & Soloway

law firm, which specializes in gay immigration issues, decided to turn

from advocacy to direct action, says attorney Lavi Soloway. (Soloway was

one of the founders of Immigration Equality, a non-profit that focuses on gay immigration issues.)

Based on the Proposition 8 ruling in San Francisco and a Massachusetts judge declaring DOMA unconstitutional,

the firm decided to challenge the current immigration laws around

foreign gay spouses.

The attorneys took on pending deportation cases of a

handful of undocumented immigrants, who, if in straight marriage instead

of same-sex ones, would be eligible for a spouse visa. The U.S. citizens in the couples submitted petitions

to sponsor the immigrants as a straight spouse would.

Additionally, the

firm filed fiance visa petitions for two gay foreigners currently

living abroad in order to be with their U.S. citizen partner. For straight

couples, fiance visas allow the foreigner to travel to the United

States to marry an American.

One of the couples -- a Venezuelan

immigrant who has an American spouse and a  deportation order -- lives

in Cathedral City, Calif. The Venezuelan is set to have a hearing in San Francisco

immigration court in July when Soloway will be arguing that the

court must change its outlook due to the Obama administration position.


remains a law on the books," Soloway says. "So at this moment we cannot

expect lesbian or gay couples to...receive a green card. But we can

expect the U.S. government to look for an innovative solution to make sure

it's not prematurely deporting people eligible for a green car because

of DOMA, which they've called unconstitutional."


emphasizes that the government is consistently making decisions about who it

will prioritize for deportations. For example, when the DREAM Act was

pending, immigration judges put aside many of the pending deportations

of students who would be eligible for relief under the law, should it

have passed, he says.

Soloway says immigration judges can do the same to put

deportations on hold until Congress repeals DOMA or the Supreme Court

rules it as unconstitutional. If DOMA is repealed, Soloway says no other change is needed in

immigration law to allow gay Americans to sponsor their foreign


"They don't have to change a word of the Immigration and

Naturalization Act," Soloway said.

He says the only obstacle then will be gay couples will have to travel

to the few states that allow gay marriages to get hitched. Maybe it doesn't sound

like a big deal -- unless you live in Honolulu or Anchorage.

Update: Gay binational couples are planning a lawsuit to challenge the constitutionality of DOMA.

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Lauren Smiley


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