Immigration Org: Stop Deportations

An LGBT immigration rights group is calling on the Obama administration to use restraint in deportation proceedings involving married, binational gay couples pending ultimate resolution of the current legal challenges to section 3 of the Defense of Marriage Act.

In written requests delivered Thursday to Atty. Gen. Eric Holder and Secretary of Homeland Security Janet Napolitano, the group, Immigration Equality, also called upon immigration officials to hold green card applications submitted on behalf of spouses of LGBT American citizens or legal residents until DOMA's constitutionality is settled by the courts. Such a move, if enacted, could allow a noncitizen spouse to remain in the country pending such legal resolution.

"Of the many rights that flow from marriage, none is more immediate than the right to petition for lawful permanent residence for a foreign-born husband or wife," Immigration Equality executive director Rachel B. Tiven and legal director Victoria Neilson wrote in the letter to Attorney General Holder. "Every day American families are torn apart because Section 3 of DOMA prevents a foreign spouse from obtaining lawful permanent residence."

Regarding deportation cases involving gay and lesbian spouses, Tiven and Neilson wrote that staying such removal proceedings "is the only way to ensure that the constitutional rights of American citizens are not being violated" until the DOMA cases are resolved.

Tiven told The Advocate that her organization's request to put green card application reviews on hold does not mean Immigration Equality is recommending that citizens apply for a green card on behalf of their noncitizen gay spouses in all cases. Individual cases vary on factors such as state of residency and current immigration status. Rather, she said her group is urging the administration to treat fairly those who may have already filed or may be in the process of filing.

Immigration Equality's letters come amid a growing call by both advocates and lawmakers for parity in cases of legally married gay and lesbian couples who are denied the same right as straight married couples to sponsor a noncitizen spouse or who are facing deportation proceedings.

Last month Holder announced that the Justice Department would no longer defend the constitutionality of DOMA's section 3 in several pending lawsuits, though it would continue to enforce the law. But some advocates argue that immigration officials have discretionary power to delay imminent deportations in cases of married gay couples.

In the letter, Immigration Equality called on Holder to instruct the Executive Office for Immigration Review "to grant long continuances in removal proceedings where the foreign national could adjust status based on his or her marriage to a U.S. citizen or lawful permanent resident were it not for DOMA."

Lavi Soloway, an attorney in private practice and a cofounder of Immigration Equality, has taken a similar stance involving clients faced with deportation proceedings. In one client case, a U.S. immigration judge last week ordered an emergency stay on the deportation of Rodrigo Martinez, who married his partner, Edwin Echegoyen, in Washington, D.C., earlier this month.

"Edwin and Rodrigo fall squarely at the intersection of this new position," Soloway said last week of the administration and its stance on section 3 of DOMA, which bans 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."

Soloway has argued that the Department of Homeland Security in recent years has amply used its powers of discretion in other 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 considered a legislative fix, one supported by the administration.

Representatives Jerrold Nadler of New York and Zoe Lofgren of California have both called on executive branch agencies to halt deportation proceedings in cases such as Martinez's. "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 told The Advocate earlier this month.

Nadler joined House Democratic colleagues Wednesday in the reintroduction of the Respect for Marriage Act, which would repeal DOMA. Sen. Dianne Feinstein of California is leading efforts on the Senate bill with cosponsors including New York senator Kirsten Gillibrand and Delaware senator Chris Coons.

Read Immigration Equality's written request to Holder on the following page.

Immigration Equality's written appeal to Attorney General Holder:

Dear Attorney General Holder:

Thank you for the courageous action you took on February 23, 2011 in announcing that the Department of Justice ("DOJ") would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA") in federal law suits. We applaud your decision and believe that this is a critical step forward in ensuring equality under the constitution for all Americans and their families.

We write to request that until there is a final resolution in the DOMA litigation, you instruct the Board of Immigration Appeals to hold in abeyance the appeals of immigrant visa petitions (I-130) filed by American citizens or lawful permanent residents on behalf of their lesbian or gay spouses. We ask further that you instruct the Executive Office for Immigration Review ("EOIR") to grant long continuances in removal proceedings where the foreign national could adjust status based on his or her marriage to a U.S. citizen or lawful permanent resident were it not for DOMA. While we understand that your letter explained that until there is a final resolution in the DOMA litigation, the Administration would continue to enforce DOMA, staying removals is the only way to maintain the status quo for these families pending the final resolution of the DOMA cases. Where the validity of a law has been so clearly called into question the most appropriate response for the Administration is to hold cases directly affected by the law.

Of the many rights that flow from marriage, none is more immediate than the right to petition for lawful permanent residence for a foreign-born husband or wife. Every day American families are town apart because Section 3 of DOMA prevents the foreign spouse from obtaining lawful permanent residence. The EOIR immigration judges are employees of DOJ and it would be unjust for immigration judges to continue to order removals of the lesbian and gay spouses of Americans by enforcing a law that you have determined is unconstitutional. Staying removals of gay and lesbian spouses is the only way to ensure that the constitutional rights of American citizens are not being violated pending the final resolution of the DOMA cases. Maintaining the status quo for these families at this point will also preserve judicial resources by preventing potentially hundreds of immigration-based federal DOMA challenges in individual cases.