03.25.11

Gay Immigrants' Same-Sex Marriage Lifeline

With Obama no longer supporting the Defense of Marriage Act, deportation cases involving same-sex unions may have been put on hold. Mike Giglio reports exclusively on gay and lesbian immigrants’ new cause for hope.

Josh Vandiver, a graduate student at Princeton, and Henry Velandia, a dance instructor who emigrated from Venezuela in 2002, had been dating for three years when, in late 2009, Velandia got word that he was going to be deported. His request for an employer-sponsored visa had been denied, and he’d been entered into deportation proceedings.  

The next spring, the couple decided to marry, and after an August 2010 wedding in Connecticut, Vandiver filed a marriage-based green card application for his new husband. This was little more than an act of defiance. While for heterosexual couples it would likely be enough to win the green card and avoid deportation, under the 1996 Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, gay and lesbian couples don’t receive immigration benefits. 

In January, the U.S. Bureau of Citizenship and Immigration Services, citing DOMA, denied Vandiver’s petition. “I assumed that’s the course that they would take,” Vandiver says. “They had no choice.” 

“This affects thousands of people. It has a tremendous impact on so many in the gay and lesbian community.”

Vandiver filed an appeal in February that he expected would see the same fate. And he prepared for Velandia’s deportation, which is scheduled for early May.        

Last month, however, the Obama administration announced that it did not consider DOMA constitutional, and would cease to defend it in court. Couples like Vandiver and Velandia have since been wondering whether they might be thrown a line—and, if so, when. The legal fight over DOMA promises to be long and tense.  

Two seemingly obscure meetings held this week between USCIS officials and immigration lawyers suggest help may be on the way. 

Newsweek/The Daily Beast has learned that the heads of two USCIS districts—Washington, D.C. and Baltimore—informed attorneys from the advocacy group American Immigration Lawyers Association that cases in their districts involving married gay and lesbian couples would be put on hold. The news could have far-reaching effects. People like Velandia might be safe from deportation while their cases are on hold. 

Immigrant advocates say that individual districts are unlikely to be making such decisions on their own, which suggests the shift in practice is a national one. “They can’t do that in two jurisdictions and not do it in other jurisdictions,” says Christopher Nugent, who chairs the immigrant-rights committee for the American Bar Association and has testified before the Senate on immigrant benefits and DOMA. “This affects thousands of people. It has a tremendous impact on so many in the gay and lesbian community.” 

Vandiver and Velandia are being represented by Lavi Soloway, a leading attorney on GLBT immigration issues. If this is indeed a national development, he says, it will change his strategy in the case—and likely do the same for scores of couples. Most gay and lesbian couples, Soloway says, have been unlikely even to file a green-card petition. If it alerted authorities to an illegal alien, it could actually spark a deportation proceeding on its own. But now, Soloway says, “it may be possible for some married, gay and lesbian couples to have their [green-card] cases held. And to have their [deportation hearings] deferred to a later date—maybe after DOMA is struck down in the courts. That would afford them protection in the meantime.”        

If the new practice is confirmed, Soloway says, he will withdraw Vandiver’s appeal and re-file the marriage-based petition and green-card application, which could protect Velandia while the DOMA battle plays out. (He also stressed that gay and lesbian couples should consult attorneys before taking any new legal action of their own.) 

Sarah Taylor, who heads the Washington district for USCIS, gave a presentation on Wednesday night to more than 100 members of the local AILA chapter. During a Q&A session afterward, she was asked whether her office had put cases involving same-sex marriages on hold. Taylor said that it had, according to Brenda Oliver, the AILA chapter’s chair. The lawyers in the room, Oliver added, responded with claps, smiles, and cheers. 

In a meeting on Thursday, meanwhile, Greg Collett, director of the USCIS Baltimore district, said the same, according to an AILA lawyer who was present.  

In a phone call with Newsweek/The Daily Beast, Taylor confirmed that her district had put the cases on hold, then referred questions to the national office. Via email, Collett referred questions to the national office as well. USCIS press secretary Christopher Bentley responded to detailed requests for comment with an emailed statement. "We have not implemented any change in policy and intend to follow the president's directive to continue enforcing the law," the statement said. 

The change in practice, however, would have the most immediate impact in two types of cases. For gay and lesbian married couples in which foreign spouses have overstayed their legal status, filing a marriage-based green-card petition would protect them from entering deportation proceedings, and possibly make them eligible to work.  

And those, like Velandia, who are already in the deportation process, could have their deportation postponed while the case is being held. Judges would still have discretion, but they tend to be sympathetic when marriage to a U.S. citizen is concerned.

Mike Giglio is a reporter at Newsweek.