Originally published on Advocate.com March 01 2011 9:40 PM ET
On Tuesday, Rodrigo Martinez and Edwin Echegoyen, a gay couple living in Rockville, Md., who have been together for eight years, had two substantial tasks to complete:
1. Get married in nearby Washington, D.C.
2. Implore immigration officials to halt deportation proceedings against one of them
Martinez, a 32-year-old citizen of El Salvador, married his American partner of eight years at D.C. superior court in what his attorney calls a “palpably new landscape” following the Justice Department's announcement last week that it will stop defending Section 3 of the Defense of Marriage Act in court.
But Martinez also faces a March 9 order from the Department of Homeland Security to surrender to its custody so that it can execute an outstanding deportation order.
“It’s bittersweet,” Echegoyen, 42, said Tuesday of the ceremony (the couple had originally hoped to marry in Maryland, where state lawmakers are currently considering marriage equality legislation). “We want to enjoy it to the point where we can really celebrate. But there are proceedings ahead of us, and we’re just praying there’s going to be some kind of relief.”
Attorneys representing several binational, married same-sex couples from California to New Jersey faced with deportation proceedings are arguing that DOMA — still the law of the land — is the last remaining obstacle for them in obtaining a green card. The Obama administration, which has concluded that section 3 of the 1996 law is unconstitutional, has the discretion to defer such cases, they argue. “It’s very compelling that [Martinez and Echegoyen] were married just a stone’s throw from the White House and the offices of the attorney general,” said Lavi Soloway, an immigration attorney and cofounder of The DOMA Project who represents the couple.
In an attempt to obtain a green card for Martinez, who has previously been denied asylum in the country, Echegoyen Tuesday filed what’s known as an Alien Relative Petition with U.S. Citizenship and Immigration Services, a subagency of Homeland Security. Such a petition is standard procedure for citizens seeking a green card for a spouse, parent, sibling, or child.
Soloway has argued that executive branch agencies, including the Executive Office of Immigration Review and Immigration and Customs Enforcement, should “develop innovative strategies” to keep binational gay couples together pending Congressional resolution.
The administration has not yet formulated a policy on deportation cases involving married binational gay couples following the DOMA announcement last week. But Soloway pointed out that Homeland Security in recent years has amply used its powers of discretion in other removal situations. In 2009 it issued a moratorium against deporting widows or widowers of U.S. citizens who had been married for less than two years while Congress worked on a legislative fix supported by the administration. Last year the department offered "deferred action" to allow students eligible for legal status under the DREAM Act to remain in the country and avoid deportation (Congress failed to pass the bill in December).
“What we’re talking about here is a small group who faces deportation—the ultimate punishment in an immigration context — and we’re talking about priorities,” Soloway said. “And every day the executive branch makes decisions on how to expend its resources.”
Rep. Jerrold Nadler of New York, who said last week that he would reintroduce a bill to repeal DOMA, told The Advocate that while the administration has made clear that it would continue to enforce the law, “If it’s the case of a legally married couple under the laws of a state or the District of Columbia, the administration ought to argue in court not to deport them.”
Nadler is also sponsor of the Uniting American Families Act, legislation that would give gays and lesbians the right to sponsor a noncitizen partner or spouse for legal residency. “I’ve always said that UAFA is not a gay marriage bill,” Nadler said, “but I’ve also always said that if DOMA were ever repealed, and that if gay marriage were recognized, the bill would be [unnecessary]. ... If DOMA is unconstitutional, then immigration law should apply equally to anyone legally married under state law.”
Martinez and Echegoyen shared their story Tuesday via The DOMA Project’s website.
Update: On Wednesday, Rep. Zoe Lofgren of California, ranking member of the House Judiciary Subcommittee on Immigration Policy and Enforcement, told The Advocate that she agrees with Nadler on deferring deportation proceedings in cases involving married, gay binational couples such as Echegoyen and Martinez. "I think [DOMA] is unconstitutional and that the federal government ought to respect couples who have married in states that permit marriage," she said.
Lofgren said she has friends and constituents in her San Jose, Calif., district facing immigration challenges as a result of DOMA. "It's a heartbreaking situation across the United States," she said. "This administration, as with any administration, has tremendous flexibility under current law to make its own judgment for fair treatment" of such couples.