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An immigration judge temporarily halted the deportation of Henry Velandia on Friday, sparing him and his husband Josh Vandiver the immediate prospect of separation in a hearing that was positively impacted by a recent surprise order from the Obama administration in a separate case.
Judge Alberto J. Riefkohl mentioned "the possibility that the definition of marriage may be changed or amended" in granting the adjournment after less than 30 minutes of proceedings in Newark, N.J., Immigration Court. In a significant development, the U.S. government did not oppose the adjournment, agreeing that it was the best course of action.
Velandia, a 27-year-old Venezuelan citizen, married Vandiver, his American spouse, in Connecticut in 2010. The couple will return to court on December 16 for a hearing that will determine how to proceed, by which point other developments in prevailing law may impact the case.
"This obviously was the best outcome that we could have hoped for, so I'm really thankful that the judge took the time to consider this very rapidly changing situation," said Lavi Soloway, the attorney for Velandia and the cofounder of Stop the Deportations.
"I can breathe," said a tearful Velandia, surrounded by a small group of supporters outside the court after the adjournment.
"For a few more months," continued Vandiver. "But we're conscious that it's just a reprieve. We'll be back in this court again in December."
Attempts to keep Velandia in the country received a boost from Atty. Gen Eric Holder, who on Thursday vacated an immigration appeals court's deportation decision in another case -- one involving a man from the United Kingdom who has a New Jersey civil union with his American partner. Soloway said that Judge Riefkohl handed him a copy of the decision when he arrived at the court Friday afternoon.
In the separate case -- unknown to key players in the gay immigration rights movement prior to Thursday -- Paul Wilson Dorman, 40, and his partner did not apply for a green card but instead asked for what's known as a cancellation of removal. In that circumstance, a person who has been in the U.S. for 10 years with a spouse or other qualified relative can ask the courts to remain in the country if deportation would result in extreme hardship.
Holder asked the appeals board Thursday to evaluate whether Dorman would be considered a "spouse" under New Jersey law as well as whether he would be considered a "spouse" under federal immigration law, were it not for the Defense of Marriage Act. Holder's move could signal the administration's willingness to use its authority in stopping potential deportations of members of binational gay couples.
Reached Friday by The Advocate, Dorman's attorney, Nicholas J. Mundy, said his client is from Northern Ireland and has been in the country since 1996. His case had been appealed to the U.S. court of appeals for the third circuit, which may have heard oral arguments in July, prior to Holder's order.
The immigration court had not made any determination on whether Dorman's case qualified as extreme and unusual hardship, Mundy said, because the judge found the couple ineligible to petition for cancellation of removal in the first place.
Mundy said he had not been given advance notice of Holder's order.
"The entire decision by the attorney general is groundbreaking," said Mundy, a Brooklyn, N.Y., immigration attorney in private practice. "I do wish that the case had been remanded back with specific instructions, but just the mere fact the attorney general decided to step in at the eleventh hour was monumental."
Soloway had said he would ask the judge in his client's case to adjourn deportation proceedings in light of the attorney general's order in the Dorman case.
"We're hopeful that the judge will see precisely what we see: that the situation for gay binational couples is in a state of flux, that the administration is looking for potential solutions, that it's very important to proceed with caution and not allow deportations to go forward prematurely when there may be a solution on the horizon," Soloway told The Advocate Friday morning.
Holder's Thursday move comes just weeks after House and Senate members sent respective letters to the Justice Department and Department of Homeland Security on the issue. They urged the administration to act within its authority to put on hold the green card applications of binational gay couples pending legislative repeal or legal resolution of DOMA. Lawmakers also asked that the administration use its discretion in deportation proceedings. Thursday's news may be an indication that it is willing to do so.
"Taking these steps would not flout or disrespect existing law, as it would not provide permanent immigration relief to married couples of the same sex, currently prohibited by Section 3 of DOMA," Rep. Zoe Lofgren, ranking member of the House Subcommittee on Immigration Policy and Enforcement, wrote to Holder and Secretary of Homeland Security Janet Napolitano last month. "Rather, it would prevent the potentially irreparable harm that would be caused by application of a law that is currently under review by the courts and the U.S. Congress.
"As the country grapples with the question of whether DOMA is constitutional and should be the law of the land," Lofgren continued, "we ask that you take steps to temporarily preserve the status quo and protect American citizens and their spouses from avoidable harm."
Earlier Friday, a coalition of LGBT advocacy and immigration groups, including Stop the Deportations, GetEqual, Immigration Equality Action Fund, and Courage Campaign drew approximately 75 people to a pre-hearing rally for Velandia outside the federal building in Newark.
"I believe love should be equal and love should be between two people no matter what their orientation," Velandia said to cheers. "Here we stand for love and we stand for our marriage and we stand for equality."