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Advocates Urge Delays In Same-Sex Binational Deportation Cases Based On DOMA's Uncertain Future

March 21, 2011 2:54 pm ET by Equality Matters staff

Tuesday, Monica Alcota and her wife, Cristina Ojeda, are scheduled to ask a New York immigration judge to drop deportation charges against Alcota, citing the recent controversy over the Defense of Marriage Act (DOMA) as their primary justification. According to the group Stop The Deportations, their request will mark the first time a same-sex couple has appeared in court to challenge deportation charges since the Obama administration announced it would stop defending DOMA in federal court challenges. A press release from the group explained the couple's defense:

The couple's lawyer, Lavi Soloway, will argue that the 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 accommodation of sympathetic humanitarian circumstances. ICA 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. [via Towleroad, Stop The Deportations press release, 3/19/11]

Alcota and Ojeda's lawsuit is just a part of an emerging legal strategy in which binational couples challenge DOMA's constitutionality. Since Obama announced his administration would stop defending the law, many Americans have begun to fight against the deportations of their same-sex foreign spouses, who would be eligible for a green card if the federal government recognized their marriages. Although foreign same-sex spouses are unlikely to be awarded green cards until DOMA is repealed, advocates are attempting to prevent "premature" deportation as DOMA's constitutionality is decided in court:

"[DOMA] 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."

Soloway 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 spouse. [San Francisco Weekly, 3/1/11]

Last week, the group Immigration Equality delivered written requests to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano calling on them to use caution when dealing with deportation proceedings for married, same-sex binational couples until DOMA's legal challenges have been resolved. The group's executive director, Rachel B. Tiven, plainly stated the importance of repealing DOMA:

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 torn apart because Section 3 of DOMA prevents a foreign spouse from obtaining lawful permanent residence.


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