Bright Spots on Gay Immigration Rights Front

Following news last week that immigration officials agreed to cancel deportation proceedings in one high-profile case, two more gay binational couples have seen positive developments in their attempts to stay together in the country despite the discriminatory Defense of Marriage Act, which the Obama administration issued a resounding court argument against on Friday.

Both cases involve gay men who have faced potential deportation back to their home countries.

In Maryland, Rodrigo Martinez, a Salvadoran citizen who married his spouse in Washington, D.C., March 1 and was ordered to surrender to immigration authorities eight days later, will now see his case reopened, an immigration judge has ruled. And in the case of Paul Wilson Dorman, a British citizen who has lived in the U.S. since 1996 and has a New Jersey civil union with his partner, an appeals board has remanded proceedings back to an immigration judge for further examination. Dorman's attorney, Nicholas J. Mundy, said he received the board's June 30 order earlier today. "I believe it's very significant, and it's going to give us an opportunity to postpone and put a stop to this deportation," Mundy said.

As with the case of Henry Velandia, who is married to an American citizen and whose canceled deportation was reported Wednesday, Martinez's American spouse would have the right to sponsor his foreign-born partner for citizenship if DOMA were no longer law of the land.

But the news is perhaps a further sign that officials are taking steps to prevent or delay deportations involving such couples. President Obama, while striking a states-should-decide-the-issue position on marriage, has also said that gay couples deserve "the same legal rights as every other couple in this country."

Lavi Soloway, the attorney for Martinez (as well as Velandia), said that an immigration judge in Baltimore canceled a previous order of removal for his client in reopening the proceedings: "The judge wants to give both parties opportunity to present anything relevant that she can consider in moving forward in deportation proceedings." And a new Justice Department brief in a case playing out across the country fits that description, Soloway said.

The 31-page brief -- described by one gay rights attorney as "strong, eloquent, and very much worth celebrating" -- was filed Friday in the case of Karen Golinski, a U.S. court of appeals attorney in San Francisco who sued the federal government after she was denied spousal health benefits for her wife.

The DOJ argued that Golinski's case should not be dismissed and articulated its position against DOMA, citing a long history of discrimination on the basis of sexual orientation -- "the kind of animus and stereotype-based thinking that the Equal Protection Clause [of the Fourteenth Amendment] is designed to guard against," government attorneys wrote. (House Republican leadership announced in April that it had tapped former George W. Bush solicitor general Paul Clement to lead defense of DOMA in multiple federal court challenges after the Justice Department announced it would no longer do so.)

"The Department of Justice's position nearly always has extra persuasive heft in litigation," said Jennifer Pizer, legal director at the Williams Institute and former marriage project director for Lambda Legal, which represents Golinski. "And while this brief is just a fuller rendition of the position taken back in February, it was not at all assumed that the administration would participate actively in the pending DOMA cases."

Soloway said of the Justice Department's stance, "Deportations is one area where the Obama administration has the discretion to limit DOMA's discriminatory impact on married same-sex couples. And in keeping with their own brief in Golinski, they should take action immediately to stop those deportations."

Administration officials have stuck to talking points that DOMA will continue to be enforced. But immigration authorities have also recently issued expanded discretionary guidelines that could benefit gay binational couples fighting to remain together in the country.

In a memo issued last month, Immigrations and Customs Enforcement officials expanded criteria to be considered by field directors, agents, and attorneys when prioritizing deportation cases, including whether an individual has a U.S. citizen spouse as well as "the person's ties and contributions to the community" and whether the individual's nationality "renders removal unlikely."

Immigration Equality legal director Victoria Neilson said Tuesday of the Justice Department's brief, "Every step that DOJ takes to do the right thing on DOMA makes their position on immigration cases -- that they will continue the enforcement of DOMA -- more untenable. My hope is that DOJ will come around [with] DOMA in the immigration context, just as they've come around in federal litigation."