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.
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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