Immigration Equality
has written the Department of Justice to request that same-sex couples who would be able to be get a green card except for DOMA's provisions be allowed to stay in the country pending the legal resolution of its constitutionality:
Dear Attorney General Holder:
Thank you for the courageous action you took on February 23, 2011 in announcing that the Department of Justice (“DOJ”) would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) in federal law suits. We applaud your decision and believe that this is a critical step forward in ensuring equality under the constitution for all Americans and their families.
We write to request that until there is a final resolution in the DOMA litigation, you instruct the Board of Immigration Appeals to hold in abeyance the appeals of immigrant visa petitions (I-130) filed by American citizens or lawful permanent residents on behalf of their lesbian or gay spouses. We ask further that you instruct the Executive Office for Immigration Review (“EOIR”) to grant long continuances in removal proceedings where the foreign national could adjust status based on his or her marriage to a U.S. citizen or lawful permanent resident were it not for DOMA. While we understand that your letter explained that until there is a final resolution in the DOMA litigation, the Administration would continue to enforce DOMA, staying removals is the only way to maintain the status quo for these families pending the final resolution of the DOMA cases. Where the validity of a law has been so clearly called into question the most appropriate response for the Administration is to hold cases directly affected by the law.
Of the many rights that flow from marriage, none is more immediate than the right to petition for lawful permanent residence for a foreign-born husband or wife. Every day American families are town apart because Section 3 of DOMA prevents the foreign spouse from obtaining lawful permanent residence. The EOIR immigration judges are employees of DOJ and it would be unjust for immigration judges to continue to order removals of the lesbian and gay spouses of Americans by enforcing a law that you have determined is unconstitutional. Staying removals of gay and lesbian spouses is the only way to ensure that the constitutional rights of American citizens are not being violated pending the final resolution of the DOMA cases. Maintaining the status quo for these families at this point will also preserve judicial resources by preventing potentially hundreds of immigration-based federal DOMA challenges in individual cases
In addition, openly gay immigration attorney
Lavi Soloway, has sent out a press release announcing that he will be asking the federal government to stop deporting bi-national couples:
On Tuesday March 22 in a New York Immigration Court, Monica Alcota, a citizen of Argentina, and her wife, Cristina Ojeda, an American citizen, will request that an Immigration Judge terminate removal proceedings so that the couple may fully pursue a marriage-based green card process with U.S. Citizenship and Immigration Services free of the threat of removal. This is the first time a married same-sex couple will appear in court to seek termination of such proceedings since the Obama administration reversed its position on Section 3 of the Defense of Marriage Act (DOMA) on February 23, calling it unconstitutional and announcing that it would not defend DOMA in pending and future federal court challenges.
Cristina Ojeda and Monica Alcota have been together since July 2008 and live in Queens, New York. In August 2010 they married in Connecticut. Cristina filed a marriage-based alien relative petition on behalf of Monica in September 2010. That petition is currently pending before U.S. Citizenship and Immigration Services. Alcota came to the United States in October 2000. She is a law-abiding, hard-working and talented antiques restorer and devoted, loving wife to Cristina.
The couple's lawyer, Lavi Soloway, will argue that removal proceedings should be terminated consistent with the Immigration and Customs Enforcement's long-standing policy of prosecutorial discretion which favors family unification and the accomodation of sympathetic humanitarian circumstances. ICE and the Court should consider the rapidly changing landscape of DOMA. That changing landscape includes the Obama administration's new position on DOMA which is expected to dramatically alter the course of future litigation against DOMA, but it also includes other significant developments.
On March 16, 2011 a bill to repeal DOMA, the Respect for Marriage Act, was introduced in the House by Rep. Jerrold Nadler (D-NY) with 105 co-sponsors and in the Senate by Senators Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY) and Patrick Leahy (D-VT) with the expected support of a total of 20 co-sponsors in total. This historic legislation seeks to end discrimination against same-sex married couples by the federal government, including for immigration purposes.
In other courts around the country, DOMA is under attack by multiple challenges. In two decisions this past July, Boston Federal District Court Judge Joseph Tauro ruled that DOMA was unconstitutional. Those cases are now on appeal at the First Circuit Court of Appeals. The Department of Justice has withdrawn from defending Section 3 of DOMA in those cases saying that it would now tell that court that it believed the statute was unconstitutional.
Termination of deportation proceedings would not restrict the Department of Homeland Security from re-initiating proceedings at a later date; it would however, free this couple from attending hearings and defending against an on-going prosecution of deportation proceedings and it would free resources of an overburdened immigration court.
