Progress — and Fits and Starts — on Immigration

BY PAUL SCHINDLER | 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.

[See Editor's Note below on this question.]

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.

Homeland Security’s subsequent pull-back in comments to Metro Weekly remain a puzzle; at one point, they even hint that Attorney General Eric Holder’s pledge to continue enforcing DOMA while the Justice Department ceases defense of it actually reduces USCIS’ discretion in handling cases of married same-sex couples. Immigration Equality’s Ralls, however, emphasized that on March 29, USCIS made clear it believes it continues to enjoy all the discretion it has always had under the law. The advocacy group is looking toward a “final guidance” from the immigration agency that “we hope will be a crystal clear notice” of how matters will be handled going forward.

[Editor's Note: 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.]

Ralls argued there is no inconsistency between USCIS continuing to enforce the law and using its discretion to put off decisions on specific applications. He noted that while Congress worked on a fix for the situation facing foreign-born widows not yet naturalized at the time of their spouse’s death, deportations in those cases were held in abeyance. Advocates, Soloway said, “should be pressing for favorable treatment on a case by case basis if that cannot be done across the board.”

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.”