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Friday, July 1, 2011

Feds Close Deportation Case Against Same-Sex Spouse of Gay American

Posted By on Fri, Jul 1, 2011 at 3:00 PM

Henry Velandia, right, and his American spouse, Josh Vandiver
  • Henry Velandia, right, and his American spouse, Josh Vandiver

The immigration woes of same-sex couples has finally reached a tipping point: The Immigration Court in Newark, New Jersey, has closed the deportation case against the foreign spouse of a gay American this week.

The couple's attorney, Lavi Soloway, says this is the first time that Immigration and Customs Enforcement has closed a deportation case for such a couple. Moreover, it opens the door for ICE to do the same in other cases involving spouses of gay Americans. That includes one San Francisco couple Soloway represents with "very similar facts" that have a court date with an immigration judge here in the city later this month.

"For the first time, the Department of Homeland Security has demonstrated that when it comes to the spouses of lesbian and gay Americans, the government does indeed have the discretion necessary to evaluate the merits of each case and, where appropriate, to decline to pursue deportation," Soloway said in a statement.  

The case at hand was of Henry Velandia, a professional salsa dancer from

Venezuela, who

is married to American Josh Vandiver, a grad student at Princeton

University. While Velandia no longer has to fear deportation, Vandiver

still must pursue a marriage visa for him.
ICE had formerly rejected the couple's request that they

reconsider using discretion in the deportation case. But

three weeks ago, ICE called Soloway to say "the case was not an

enforcement priority at this time," and filed a request to drop it. Immigration Judge Alberto Riefkohl granted the motion, and the

couple heard about the decision on June 29.

Earlier this month, ICE Director John Morton sent out a memo

that ICE officials should use discretion in pursuing deportations

against foreign nationals who had U.S. citizen spouses. At the time, an

ICE spokeswoman told us that the agency still enforces the Defense of

Marriage Act, which only recognizes heterosexual marriages, and "spouse"

did not include gay spouses. Now, the agency's chief counsel has had a

very different interpretation.

Soloway will be staging a protest with gay rights activists outside the San Francisco immigration court on July 13, when Alex Benshimol, the Venezuelan husband of American
Doug Gentry, will battle against the impending deportation.

ICE's decision to close the deportation case "is not going to happen every time," Soloway says. "That's why we're pushing the [Obama Administration] to form a formal policy of all deportations of same-sex partners of US citizens."

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