Victory for Monica & Cristina! Government Closes Deportation Case Against Married Lesbian Couple in New York
Immigration & Customs Enforcement Closes Deportation Case Against Argentinean Lesbian, Monica Alcota, Based on Ties to Community Including Marriage to her Spouse, Cristina Ojeda
First Case of a Married Gay Couple Closed Since New DHS’ November 17 Announcement That “Working Group” Would Begin to Implement Prosecutorial Guidelines Nationwide
For the first time since the Department of Homeland Security’s (DHS) November 17 announcement that a national “working group” had begun reviewing all cases currently pending in immigration courts, Immigration & Customs Enforcement (ICE) has closed a deportation case involving a married same-sex couple.
Although the latest DHS “prosecutorial discretion” guidance still did not explicitly include LGBT families, advocates at Stop the Deportations say that the decision by ICE demonstrates that existing criteria can be properly applied to keep married gay and lesbian couples safe from deportation.
Immigration Judge Terry Bain granted a Joint Motion to Administratively Close Removal Proceedings against Argentinean born lesbian, Monica Alcota, because “good cause has been established.” Judge Bain’s decision was dated November 30, and was received yesterday, just one day before Monica Alcota was due back in court for a final deportation hearing. Monica Alcota’s lawyer, Lavi Soloway, submitted the request for Administrative Closure to ICE Chief Counsel in Manhattan on November 14. The request was based on her marriage to her U.S. citizen spouse, Cristina Ojeda; her deep roots in the community in which she lives and works; her activism against DOMA; and the absence of any adverse factors, i.e. that Monica Alcota is a hard-working, law-abiding person who is not a danger to the public safety or national security.
For most lesbian and gay Americans with foreign-born spouses the only obstacle to a “green card” is the so-called “Defense of Marriage Act,” (DOMA) the law that prevents the federal government from recognizing the legal marriages of lesbian and gay couples.
The “DOMA deportation” that threatened to tear apart Monica Alcota and Cristina Ojeda, a married lesbian binational couple who live in Queens, New York was stopped after ICE attorneys agreed to Alcota’s request and submitted a Joint Motion for Administrative Closure to the presiding Immigration Judge on November 29.
This is the first time the government has asked an immigation court to close removal proceedings against the gay or lesbian spouse of an American citizen since the formation of an inter-agency prosecutorial discretion working group began its work on November 17 with the goal of finding and closing all “low-priority” deportation cases.
Statement from attorney Lavi Soloway, Founder, Stop The Deportations:
“We are thankful to Immigration & Customs Enforcement and to Immigration Judge Terry Bain for closing this case and stopping the deportation of Monica Alcota. Although the Department of Homeland Security has declined numerous requests in recent months for specific, LGBT-inclusive guidance on deportation cases, this action demonstrates that existing guidelines that weigh “family relationships” and “ties to the community” can be properly applied to protect married lesbian and gay binational couples. After a courageous battle, Monica and Cristina have arrived at the end of a long journey that began when Monica was pulled off a Greyhound bus in July 2009 and held in an ICE detention facility for three months while we fought for her release. That nightmare ends today. Monica and Cristina can now turn to the business of building a future together without living in constant fear of deportation.
Importantly, this shows married lesbian and gay binational couples can be protected from deportation when ICE fairly applies its own guidelines. By halting this deportation, ICE prevents a marriage from being torn part by DOMA, a law that the President and the Attorney General have determined to be unconstitutional and have refused to defend in Federal Court.”
Statement from Monica Alcota and Cristina Ojeda:
“We are grateful that the government lawyers and the judge saw the humanity of our situation and respected our marriage. We have learned through this process how important it is to stand up for ourselves and how much we can all achieve when we demand to be treated equally. This battle is not over. Our green card case is on appeal, and of course we will not have full equality until DOMA is gone. We must all continue to work to make sure no lesbian or gay couples are separated by deportation. We thank all those who have supported the Stop The Deportations campaign and all those who have given us encouragement and strength to keep up the fight.”
In March, New York Immigration Judge Terry Bain, acting with the agreement of the Immigration & Customs Enforcement prosecuting attorney, temporarily postponed Monica’s deportation hearing on the basis that Cristina had filed a marriage-based “green card” petition for her Argentinean wife. At the time, Monica and Cristina were the first married same-sex couple to have their deportation case postponed on the basis of their marriage. The couple was scheduled to return to court on December 6, 2011 for a deportation hearing to review the status of that petition.
In April, USCIS denied Cristina Ojeda’s “green card” petition for Monica, citing DOMA and also relying on a 1982 decision known as Adams v. Howerton from California’s Ninth Circuit Court of Appeals. Ojeda appealed the denial of her petition to the Board of Immigration Appeals (BIA). The lawyers for the couple, Stop The Deportations co-founders, Lavi Soloway and Noemi Masliah, filed a brief arguing that the BIA should not affirm the denial considering that the Department of Justice, of which the BIA is a part, has itself determined that DOMA is unconstitutional. The brief argued that the BIA should hold the case in abeyance, given the rapidly evolving legal context, specifically the DOJ’s filing of a 31-page brief against DOMA and in support of the plaintiff in the Golinski case on July 1; the DOJ’s decision to allow married same-sex couples to be recognized as married in U.S. Bankruptcy Court proceedings on July 7; and the Attorney General’s historic intervention in a BIA decision on May 5 that suggested the DOJ was considering whether “partners” in civil unions could be recognized as spouses for immigration law purposes.
In the memo requesting ICE attorneys join the motion to close proceedings, Soloway argued that Monica Alcota met numerous prosecutorial discretion criteria laid out in the June 17th Morton Memo (original memo text italicized):
- Whether the person has a U.S. citizen or permanent resident spouse, child, or parent.
Soloway argued that Monica has a U.S. citizen spouse, Cristina, and they were lawfully married in Connecticut in 2010.
- The person’s ties and contributions to the community, including family relationships.
Soloway argued that Monica has formed strong community ties in the 11 years she has lived in the US: she has a successful antique furniture business, is a well-respected member of her community, and received a number of very heartfelt letters from long-time friends and associates detailing her connection to her community.
- Particular attention should be paid to plaintiffs in non-frivolous lawsuits involving civil rights.
Soloway argued that Monica and Cristina were part of an advocacy campaign, namely, Stop the Deportations, that had filed I-130 marriage-based “green card” petitions in order to challenge the Defense of Marriage Act in pursuit of (equal) civil rights.
- The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants.
Soloway noted that Monica has no criminal history, no arrests, convictions, outstanding arrests or charges.
- The person’s ties to the home country and conditions in the country.
Soloway argued that Monica has no ties to her home country of Argentina and has not lived there for 11 years. Additionally, Monica had no intention of ever returning to live in Argentina and feared for her safety as an openly gay woman were she forced to live there.
In response, ICE agreed to close the case and submitted a Joint Motion to Administratively Close proceedings directly to Immigration Judge Terry Bain on November 29.
For Monica and Cristina, the move by the government means that they will no longer have a cloud hanging over their future. They will continue to fight for full equality, including a “green card” for Monica based on her legal marriage to a U.S. citizen, but without worrying that the government will destroy their marriage, or tear apart the life they have built over the past three and a half years.
STOP THE DEPORTATIONS – THE DOMA PROJECT, a campaign co-founded by attorney, Lavi Soloway in July 2010 along with his law partner, Noemi Masliah, has contributed to the trend of recent victories for lesbian and gay couples who are faced with deportation, separation or exile because of the Defense of Marriage Act. For nearly two decades, Soloway has been the most prominent attorney and advocate on LGBT immigration law and policy in the United States. He has worked exclusively in this field since co-founding the non-profit organization, Immigration Equality, in 1993.
IMMEDIATE RELEASE- DECEMBER 6, 2011
Press Inquiries to attorney, Lavi Soloway, or
Project Associate, Derek Tripp, at Stop The Deportations-The DOMA Project
A Look Back At Monica & Cristina In the News
“Uniting American Love: Binational Couples Press For End to Deportations,” Gay City News, October 30, 2010
“Monica and Cristina: Binational Lesbian Couple in Queens Fights DOMA and Deportation,” Stop The Deportations, October 26, 2010
“Hope for Queens Couples’ Immigration Rights After Obama’s Abandoning of Defense of Marriage Act,” NY Daily News, February 26, 2011
“DOMA Offers Slim Hope For Same-Sex Bi-National Couples,” UpTown Radio, March 11, 2011
“Advocates Urge Delays In Same-Sex Binational Deportation Cases Based On DOMA’s Uncertain Future,” Equality Matters, March 21, 2011
“New York Couple Fighting to Stay Together,” Freedom To Marry, March 22, 2011
“Monica & Cristina Will Ask Immigration Judge Tuesday to Terminate Deportation Proceedings,” Stop The Deportations, March 21, 2011
“Immigration judge suspends deportation of foreign-born gay spouse,” GayAmericaBlog, March 22, 2011
“Queens Woman Won’t Be Deported, Judge Says, Until Legal Status Of Same-Sex Marriage Is Clear, Huffington Post, March 23, 2011
“Gay woman gets stay of deportation in the midst of DOMA upheaval,” Nerve.com, March 23, 2011
“Lesbian U.S. Citizen First to File for her Spouse’s Green Card,” Journal.Us, March 24, 2011
“Hope for Binational Lesbian and Gay Couples,” SheWired.com, March 28, 2011
“DOMA And Immigration: What’s Next?” WNYC, April 4, 2011
“Gay woman in same-sex Queens marriage won’t be deported, judge says ruling depends on pending law,” Daily News, March 23, 2011
“Lesbian Couple Fight Deportation Effort,” Passport Magazine, March 24, 2011
“US lesbian couple have deportation suspended: A lesbian couple in the US the first couple to successfully halt pending deportation proceedings based upon their marital status,” Pink Paper, March 24, 2011
“NY Court Considers Marriage Of Argentine Gay Woman For Citizenship,” On Top Magazine, March 28, 2011
“Obama’s Future Win Will Come Too Late,” VIDEO, Pam’s House Blend/FireDogLake, June 9, 2011
“Lambda Legal to Immigration: Stop using DOMA to discriminate against married same-sex couples,” The Windy City Times, July 13, 2011
“For Queens Lesbian Couple, A New Curve Ball,” Gay City News, July 22, 2011
“Queens Gay Couple Fear New Law Will Not Stop Deportation,” Queenslyfe, July 23, 2011