DOMA's Continued Consequences

In a deportation case that tests the uncertain legal terrain following the Obama administration's announcement that it would no longer defend the Defense of Marriage Act, a gay man who recently married his partner in Washington, D.C., will likely surrender to immigration officials Wednesday morning.

Rodrigo Martinez, 32, and his American husband, Edwin Echegoyen, 42, said through an attorney Tuesday evening that they will comply with the order. Barring any last-minute intervention, Martinez will arrive tomorrow at the Baltimore field office of U.S. Immigration and Customs Enforcement. The Rockville, Md., couple wed in the nation's capital last week.

Their attorney, Lavi Soloway, had filed a motion Monday for an emergency stay of removal (read more on the couple's story here). Martinez could be detained indefinitely, swiftly deported back to his home country of El Salvador, or released under ordered supervision.

Update: Martinez turned himself into immigration officials Wednesday but was released on an order of supervision. His deportation proceedings are still pending, however.

Though Atty. Gen. Eric Holder stressed in a February 23 announcement that the administration would continue to enforce DOMA, Soloway argues that executive agencies have the discretionary power to halt or postpone deportation orders affecting legally married gay couples -- discretion it has used in other circumstances, including a 2009 moratorium on deporting widows or widowers of U.S. citizens who had been married for less than two years.

"Edwin and Rodrigo fall squarely at the intersection of this new position," Soloway said of the administration and its stance on section 3 of DOMA, which bars the federal government from recognizing the marriages of same-sex couples. "This is an important act of protest ... and the beginning of a process by which they may one day receive the green card for Rodrigo that they deserve."

Representatives Jerrold Nadler of New York and Zoe Lofgren of California, both well-known proponents of LGBT immigration rights in Congress, have both called upon the administration in recent interviews with The Advocate to stop deportations in cases like that of Martinez.

New York senator Kirsten Gillibrand, whose constituency includes binational gay couples facing deportation crises that have also drawn media attention in recent weeks, said in a Monday statement, "The recent news of deportations involving legally married gay and lesbian binational couples is heartbreaking."

In the statement Gillibrand focused on legislative repeal of DOMA as the appropriate remedy -- one that will likely prove to be challenging in a Congress where House Republican leadership is currently planning defense of the 1996 law in multiple federal lawsuits. "It is critical that we repeal the Defense of Marriage Act and ensure that immigration laws respect all loving, committed marriages," Gillibrand said.

Immigration Equality executive director Rachel B. Tiven, whose organization is currently planning to challenge DOMA in court because it denies legally married gays and lesbians the right to sponsor a spouse for citizenship, said Tuesday, "It is imperative that the administration stop breaking up families based on a law that it says is unconstitutional. We're calling on the Department of Homeland Security to stop denying green card applications for the spouses of American citizens."

Though the group's lawsuit has yet to be filed, Tiven said Immigration Equality will likely do so in the second circuit, which has no precedent for how laws based on sexual orientation classifications should be evaluated. As a result, Holder said in the February statement, "The President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny."

Read more at Stop the Deportations here.