Last July, San Francisco Immigration Judge Marilyn Teeter gave ICE 60 days to decide whether to drop the deportation proceedings and respond to a lengthy request by Benshimol's attorney which cited a memo by ICE Director John Morton. The memo instructs the agency to use discretion when dealing with deportation proceedings against family members of American citizens.
In less than a month, ICE responded with a motion to close the deportation proceedings. In early July, ICE dropped a similar deportation case involving another Venezuelan man, Henry Velandia, who lives with his spouse in New Jersey.
Meanwhile, there is an ongoing case closer to home -- Australian national Anthony Makk made headlines recently when he and his San Franciscan spouse, Bradford Wells, were denied a marriage visa, again on the grounds of the Defense of Marriage Act, which reserves marriage benefits for straight couples. They have appealed the decision and are waiting on the feds. Makk's case received unusually high media attention as he is also the primary caretaker of Wells, who has AIDS.
"It's great news that the administration is proactively dropping deportation proceedings," says Steve Ralls, spokeman for Immigration Equality. But Ralls believes that the government still has a long way to go in bringing legal protection to LGBT married couples.
He explains that the feds have a pattern of waiting until the last minute before providing relief. "Essentially, the Department of Homeland Security (DHS) is saying that you must be faced with the worst case scenario to qualify for relief," says Ralls. "The administration should be working to help families not face that scenario in the first place. We wish it didn't have to come to removal."
Makk is filing a green card appeal this week to ask earlier intervention, in hopes that DHS will rescind the rejection of his green card.
"The current administration has a certain cognitive dissonance over DOMA," says Benshimol's attorney, Lavi Soloway. "DOMA instructs that the government cannot approve green card applications, but they don't need to deny them. They could just hold them in abeyance, and Makk's plight would be resolved if, at the very least, the government would hold those cases in abeyance. But that's not what they've chosen to do."