March 24, 2011 1:34 pm ET - by Carlos Maza
An immigration judge in Manhattan Tuesday adjourned deportation proceedings against Monica Alcota – the spouse of American citizen Cristina Ojeda – until their marriage-based immigration case is resolved, marking the first time a married, same-sex, binational couple has achieved such a victory.
Earlier this week, Alcota announced that she would be asking the judge to postpone her deportation proceedings in light of the emerging legal controversy surrounding the constitutionality of the Defense of Marriage Act (DOMA). Although married, heterosexual, binational couples are eligible to apply for green cards under U.S. immigration law, DOMA denies married same-sex couples that opportunity.
On Tuesday, the couple’s attorneys, Lavi Soloway and Noemi Masliah, argued that the couple’s marital status qualifies Alcota for permanent residency status. After the adjournment, Soloway explained the importance of the judge’s decision to Gay City News:
“It is almost impossible to overstate the significance of what happened in there… 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.”
If the couple’s DOMA challenge is ultimately unsuccessful, Soloway says he will argue that Alcota deserves asylum due to a “provable fear of persecution” in her home country of Argentina.
Either defense strategy is likely to draw criticism from the right-wing Center for Immigration Studies (CIS), which has recently become an outspoken opponent of attempts to allow protect same-sex binational couples. On Sunday, CIS criticized the gay and lesbian immigrants who had begun to “agitate for spousal visas,” claiming that attempts to aid same-sex binational couples constituted an immigration policy of “slouching toward Gomorrah.”
The CIS has routinely criticized attempts to grant LGBT immigrants the right to stay with their same-sex American partners. In June of last year, it opposed a federal decision to put a gay immigrant on the path to legal residency, even though he had been raped in his home country of Brazil.
The decision adds to the growing number of legal developments putting pressure on the 1996 Defense of Marriage Act. If recent federal courts decisions are any indication of how these legal challenges will fare in court, Alcota and Ojeda may be soon able to look forward to a long and happy life – together – in the United States.
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