Monica & Cristina Will Ask Immigration Judge Tuesday to Terminate Deportation Proceedings

Last October we brought you the story of Monica and Cristina, a married, binational couple from Queens, New York who are facing the very real prospect of being torn apart by deportation. On Tuesday, they will become the first couple to face an Immigration Judge and challenge deportation proceedings in light of the Obama administration’s changed position toward the Defense of Marriage Act (DOMA).

What Monica and Cristina will do on Tuesday is historic. They will ask not only that Monica should not be deported to Argentina, but also that the government agree to terminate proceedings against her, so that they can continue their fight for a green card for Monica on the basis of their marriage without deportation proceedings hanging over them. Although this is the first time such a request has been made since the administration’s abandonment of DOMA, it is consistent with existing guidelines that require Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion in certain deportation cases. With this request to terminate proceedings, as with their fight against DOMA itself, Monica and Cristina are not asking for anything other than to be treated with fairness, dignity and respect.

Of course, if not for DOMA, this story would have ended long ago. Cristina, a U.S. citizen, would have successfully petitioned for Monica’s green card. It would have been a straightforward process regardless of the fact that Monica had over-stayed her entry as a visitor by many years. That is because our  immigration laws, which are designed to keep families together, prioritize spouses of U.S. citizens above all other relatives. DOMA unconstitutionally excludes Monica and Cristina from this process only because they are a lesbian couple.

When Monica and Cristina confront the cruelty of DOMA in Immigration Court this week they will be accompanied in spirit by two powerful allies: Barack Obama and Eric Holder. Monica and Cristina will be the first married, same-sex binational couple to confront DOMA in Immigration Court since the President and the Attorney General announced their conclusion that DOMA is unconstitutional and informed the Speaker of the House that the Department of Justice would no longer defend DOMA in federal court challenges. Monica and Cristina will argue that given the government’s new position, continued deportation proceedings against a married, binational same-sex couple are unfair, unnecessary and inappropriate.

Monica and Cristina have experienced an emotional roller-coaster for the past three years. Like other couples, they met, fell in love and decided to move in together. Almost immediately they struggled with Monica’s immigration status. Their hardest days came in July 2009. Cristina had finished grad school in Buffalo and the couple made one last trip there to move her remaining belongings to Monica’s apartment in New York.  They bought tickets for an express bus, but at the last minute they heard the announcement that the bus would be making local stops. A few hours into the ride, every binational couple’s nightmare unfolded before Cristina’s eyes.  In Rochester, Border Patrol officers boarded the bus for a routine check of identification papers. Monica was pulled off a bus and taken into custody.  That lead to Monica being held for more than three months in detention in Elizabeth, New Jersey.  Cristina traveled hours to visit Monica as often as possible, trying to keep her spirits up. Those visits were heartbreaking. Cristina and Monica was reduced to speaking on a telephone through a plexiglass window.  They tried to stay strong, but many tears were shed during those months. Finally an Immigration Judge ruled that she could not be deported without a hearing, and she was released from detention in October.

DHS’ receipt for Cristina Ojeda’s petition for Monica Alcota refers to Monica as the spouse of a U.S. citizen

It took a while for Monica to recover from the trauma of being held in what is essentially a jail, with limited privacy and very little contact with the outside world. After returning to their home in Queens, the couple started to consider their future together and decided to join Stop The Deportations -The DOMA Project. They participated in a rally for Marriage Equality in September 2010, their first ever act of public protest, carrying signs that read “Don’t Deport My Wife!” and “Recognize our Marriage as Equal.” They stood courageously with other binational couples at the podium as one member of that group eloquently spoke of the pain of living under constant fear of separation. Monica and Cristina themselves had married in Connecticut that summer, and decided to speak to the press and tell their story.  Cristina filed a marriage-based alien relative petition for Monica, the first step in a long-term battle for a green card. In October, The Gay City News published a detailed article featuring them and one other couple fighting deportation. Shortly after the Administration announced its new position on DOMA on February 23, Monica and Cristina were interviewed on the Spanish-language program Pura Politica with one of The DOMA Project founders, attorney Noemi Masliah, who is also a member of their legal team.

Tears of happiness on the wedding day

Monica and Cristina are fighting on behalf of all binational couples who live in fear that they might one day be battling deportation, surely the cruelest impact of DOMA.  Until it is repealed by Congress or struck down by the Supreme Court, DOMA will remain the law of the land. Monica and Cristina will be arguing to the ICE attorney and the Immigration Judge that it is wrong to move forward with the deportation of the spouse of an American citizen when the only obstacle to a green card for that person is a law that the President and the Attorney General believe is unconstitutional and refuse to defend.

Termination of these proceedings does not confer a legal “benefit” on this couple and it does not put ICE at any disadvantage; in fact, ICE can request that the court reinstate proceedings at any time in the future. Importantly, termination of proceedings does not contradict the Executive Branch’s constiutional obligation to enforce all laws including DOMA. Administrative termination is nothing more than an exercise of prosecutorial discretion, a necessity for prosecutors who must allocate scarce resources according to specific agency priorities and objectives. ICE, through several memos over the years, has established that sympathetic humanitarian circumstances and family unification are two criteria upon which a favorable exercise of prosecutorial discretion, including the termination of proceedings, can be based. Monica and Cristina will urge the government to look carefully at its own guidance for exercising discretion and apply those criteria to their case.

Prosecutorial discretion has been used by this administration for vulnerable groups (e.g. for widows of U.S. citizens in 2009 and for DREAM Act eligible young people in 2010) to further important public policy goals and address humanitarian need while corrective legislation has been pending in Congress.   With DOMA repeal legislation now pending in both the House and Senate, immigration advocates and some members of Congress (Rep. Jerrold Nadler and Representative Zoe Lofgren) are calling on the Obama administration to develop policy to halt deportations involving married, same-sex binational couples.  Monica and Cristina need your help to enlist the the support of more members of Congress to call on the administration to halt these deportations.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.