Bi-National Couple Wins Breathing Room as Feds Call Off Deportation

A married same-sex couple facing the deportation of one spouse, a Venezuelan man, breathed a sigh of relief when the government halted his deportation, the New York Times reported on June 29. It's breathing room that all of the nation's bi-national couples might eventually be able to share, if immigration guidelines can be updated to reflect the reality of contemporary family life.

Heterosexual couples in which one member is a citizen from abroad have the option of applying for residency and a green card, with the individual who is a U.S. citizen acting as sponsor for his or her spouse. But an anti-gay 1996 law, the so-called "Defense of Marriage" Act (DOMA), denies same-sex families any federal recognition. That leaves bi-national gay and lesbian couples to face hurdles to legal residency that are often insurmountable. Some couples resign themselves to lives lived together across a distance; for others, it means re-locating somewhere other than the land of the free.

But recent developments have given gay and lesbian Americans and their foreign life partners cause for hope that, some day, they too might have the bonds of their commitment honored by immigration authorities.

For starters, the Obama Administration announced in February that it would no longer defend DOMA in federal court. The law, which faces challenges in ten different federal cases, has already been found unconstitutional by one federal judge. The Obama Administration agreed, and it is on the basis of that question of constitutional muster that the government now declines to defend the ban on federal recognition of same-sex families.

In March, the U.S. Citizenship and Immigration Services briefly stopped automatically rejecting green card applications from foreign nationals married to same-sex American spouses. That short-lived change spurred hopes that a more permanent adjustment in immigration policies might be around the corner.

"The move away from immediate rejection of such green card applications for same-sex couples seems likely to affect future deportation proceedings as some judges begin to exhibit a similar reticence in deporting couples while the future of the Defense of Marriage Act (DOMA) is in doubt," text posted at the website of GLBT parity advocacy group Equality Matters read.

Even as the Obama administration stepped away from defending the anti-gay law, however, Republican members of Congress unveiled a plan to use taxpayer dollars to hire a private attorney to take up DOMA's defense, and GOP contenders for the nomination in next year's presidential election slammed Obama for not defending the law.

Even so, the government now has what the Times article called "new, more flexible guidelines governing the deferral and cancellation of deportations, particularly for immigrants with no serious criminal records." Those new guidelines carry a measure of hope for bi-national same-sex couples.

Josh Vandiver and his Venezuelan husband, Henry Velandia, were facing enforced separation as Velandia's deportation loomed ever closer. GLBT civil rights advocacy group GetEQUAL organized a rally for the couple last month. A host of other GLBT parity organizations, including Stop the Deportations, All Out, Courage Campaign, Garden State Equality, Immigration Equality Action Fund, Marriage Equality USA, Out4Immigration, Princeton Equality Project, and Queer Rising, also took part in the rally.

"The rally outside the Newark Federal Courthouse is taking place as Josh Vandiver of Colorado and Henry Velandia of Venezuela face deportation hearings before the court," a May 5 joint release said.

"Despite legally marrying in Connecticut in August 2010, Vandiver (a Ph.D. student at Princeton University) and Velandia (a salsa dancer, instructor, and founder of a Princeton-based dance studio) are facing a nightmare scenario--being ripped apart from one another at the hands of the U.S. government."

The release added, "Josh and Henry became tireless advocates for LGBT bi-national couples in the United States, all the while fighting to stay together and save their own marriage. Last fall they launched the 'Stop the Deportations' campaign to raise awareness to the cruel impact that DOMA has on married same-sex couples and to challenge DOMA in immigration court proceedings."

"I never intended nor wanted to be an activist," Vandiver said. "I have to do what is necessary to save our marriage and to keep the man I love in this country."

An immigration judge halted Velandia's deportation in light of pending possible changes to immigration policy. Then, on June 9, the New York Times reported, the men's lawyer, Lavi Soloway, "received a call from Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, an arm of the Homeland Security Department, informing him that the agency had agreed to his request to close the deportation proceedings" against Velandia. On June 13, the same immigration judge agreed to close the case against Velandia.

The men seem to have won their struggle to stay together -- for the moment, at least.

"I can start breathing now after so many months of fighting," Velandia told the Times. "I was holding my breath for fear of any moment being sent away."

But while DOMA is still in place, nothing is secure -- for Vandiver and Velandia, or for any other bi-national couple. "The fight isn't over," Velandia added.

In March, a group of lawmakers reintroduced the Respect for Marriage Act, which would repeal DOMA and extend the same rights and protections that heterosexuals enjoy to same-sex couples.

"The 15-year-old DOMA singles out legally married gay and lesbian couples for discriminatory treatment under federal law, selectively denying them critical federal responsibilities and rights, including programs like Social Security that are intended to ensure the stability and security of American families," a March 14 press release from the offices of Reps. Nadler, Barney Frank (D-MA), Tammy Baldwin (D-WI), Jared Polis (D-CO), David Cicilline (D-RI), and John Conyers (D-MI) said.

The bill has not gained traction, but as support for GLBT Americans grows -- and especially in light of lawmakers in New York recently approving marriage equality legislation, bringing the number of marriage equality states back up to six -- it remains possible that the bill could eventually win Congressional support.

Another possibility is that the courts will eventually strike DOMA down, opening the way for gay and lesbian Americans to lay claim to equal rights before the law for themselves and for their families.