In a move that will cause hyperventilation and flying spittle among Christofascist circles, the Obama administration has ceased deporting married spouses in LGBT relationships where one spouse is not a U.S. citizen. It's a move that is consistent with how the U.S. immigration officials have long treated foreign heterosexual couples and honors marriages that are legal in the nations that offer full same sex marriage. It also stops making a mockery of legal marriages performed in countries states where same sex marriage is allowed. In this latter regard, it also and gives recognition to the U.S. Constitution's full faith and credit clause - something the Founders wrote into the Constitution to avoid a patchwork of conflicting recognition of the laws of other states. It's a part of the Constitution that those who claim to worship the Constitution conveniently like to forget - that and the fact that it renders DOMA unconstitutional. Here are highlights from the Daily Beast:*
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.
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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.
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In January, the U.S. Bureau of Citizenship and Immigration Services, citing DOMA, denied Vandiver’s petition.
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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.
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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.
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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.
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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.)
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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.
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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.
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It is long past time that DOMA be struck down as unconstitutional and thrown on the trash heap of history along with slavery, the subjugation of women, the Jim Crow laws and other forms of discrimination that have been alleged to be supported by the Bible and tradition. It is also long past time that the special rights given to anti-gay religious beliefs be thrown on the trash heap of history as well.
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