Victory! Board of Immigration Appeals Refuses to Affirm Denials of Green Card Petitions Filed by Four Gay Couples, Remands for Determination on Eligibility of Marriages

Tom Smeraldo and Emilio Ojeda, who live in “DOMA exile” in Canada were one of four DOMA Project couples to receive the unexpected ruling from the Board of Immigration Appeals

The DOMA Project has won an important, unprecedented victory in the fight for green cards for married gay and lesbian binational couples. In four separate rulings, the Board of Immigration Appeals has rejected the U.S. Citizenship and Immigration Services’ “DOMA denials” of green card petitions filed by four married, gay couples residing in Florida, New York, Pennsylvania and Canada. In all cases, the BIA ordered the USCIS to complete full fact-finding to determine whether the marriages are legally valid and whether, notwithstanding DOMA Section 3, the spouse would qualify for a green card under the Immigration & Nationality Act.  In one case, the ruling re-opened removal proceedings for the spouse of a gay American who had an outstanding deportation order.  The Board of Immigration Appeals has never before re-opened removal proceedings or remanded green card petitions back to USCIS after denials based solely on DOMA Section 3.

Masliah & Soloway, the law firm that launched Stop The Deportations – The DOMA Project, represents all four couples.

“We are elated that the Department of Justice has ordered USCIS to treat the marriages of each gay binational couple with respect by requiring that a complete record of eligibility be created,” said attorney Lavi Soloway in reaction to the rulings.

We will follow up with a complete report next week on this site.

The BIA rulings were reported today by Chris Geidner at MetroWeekly here.

Read more about two of the couples involved: Mark Himes and Frederic Deloizy of Harrisburg, Pennsylvania and Tom Smeraldo and Emilio Ojeda, formerly of New Jersey now living in exile in Toronto, Canada.

The DOMA Project Reacts to Policy Granting Deferred Action and Employment Authorization to Dream Act Immigrants

Department of Homeland Security Secretary Janet Napolitano released a three-page memorandum directing U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to offer “deferred action” to certain young persons who were brought to the United States as children.  The President followed the release of the DHS memo with a speech in the Rose Garden announcing the long-awaited policy which, in some respects, closely tracks the legislation known as the DREAM Act and responds directly to years of protests and a massive grass roots organizing efforts by student activists known as “Dreamers.”  Perhaps most importantly, today’s events demonstrated that the President will use his broad authority to solve problems that Congress is unwilling to address, especially when communities organize and advocate effectively for executive branch action. Today’s move falls squarely within the framework of President Obama’s mantra, We Can’t Wait, but it also confirms the President’s repeated promise to take action when his feet are held to the fire. At today’s White House Pride Reception, the President repeated that theme: “Now, I’ve said before that I would never counsel patience; that it wasn’t right to tell you to be patient any more than it was right for others to tell women to be patient a century ago, or African Americans to be patient a half century ago. After decades of inaction and indifference, you have every reason and right to push, loudly and forcefully, for equality.”

Statement by Lavi Soloway, co-founder, Stop The Deportations – The DOMA Project:

“President Obama used the discretionary power of the executive branch to achieve greater fairness in the enforcement of our immigration laws, consistent with his promise to prioritize keeping families together. This new policy provides temporary lawful status and employment authorization to hundreds of thousands of young immigrants, including many LGBT “Dream Act” students, and strengthens our communities and our country. While we celebrate this important step forward, we are reminded every day that there is much more work to be done to ensure that our immigration policy protects all American families.

We urge the administration to implement interim solutions that protect gay and lesbian binational couples who are excluded from the existing “green card” process available to all other married couples because of the Defense of Marriage Act. Every day these couples worry that they will be torn apart or forced into exile in order to stay together. This administration has said that denying green cards to the spouses of gay and lesbian Americans is a violation of the equal protection guarantee of the U.S. Constitution, but has not taken the steps necessary to mitigate the discriminatory impact of DOMA in this area. Instead, U.S. Citizenship and Immigration Services continues to deny green card petitions filed by lesbian and gay Americans for their spouses.

Given that six federal court rulings have found DOMA to be unconstitutional, the administration now should put into effect the following policy to stop the deportations, separations and exile of gay and lesbian binational couples:

(1) order an immediate moratorium on deportations of the partners and spouses of gay and lesbian Americans who, but for DOMA, would be eligible for permanent resident status;
(2) provide temporary humanitarian parole to the partners, spouses and children of gay and lesbian Americans who are stuck outside the United States, so that these families can be reunited; and
(3) put on hold all “green card” petitions filed by gay and lesbian Americans for their spouses, thereby giving those spouses lawful status and employment authorization until DOMA has been struck down by the Supreme Court or repealed by Congress;

These steps would not achieve full equality, but they would keep these LGBT families together until DOMA has been defeated.”

Daniel and Yohandel To Celebrate Their Anniversary By Filing For A Green Card and Fighting For Full Equality

This is a story about true love at first sight, a story about immigration rights, justice and of the hope that comes from fighting for freedom and full equality.

Daniel and I met last summer while he was vacationing in Miami from Monterrey, Mexico. I am a Cuban-born American citizen, who arrived in this country at the age of six.

Our magical journey started the moment Daniel walked into a local bar in Miami Beach on a quiet Tuesday night. My eyes locked with his and we couldn’t help but stare at each other. It was love at first sight. A few weeks earlier, New York’s legislature had passed its gay marriage law, and Daniel was proudly wearing an “I Love NY” t-shirt with a rainbow colored heart. The t-shirt was my ticket to walk up to Daniel and launch into some small talk. Hours later we found ourselves still engaged in conversation. I was excited to have met someone new, but I also felt the anxiety of knowing that we would probably not see each other ever again as he was returning to Mexico in a few days. My brain told me that there was no point in pursuing this further. Fortunately for me, my heart convinced me to ask Daniel out on a date, so I invited him to dinner. With butterflies in my stomach I barely slept a wink thinking about the strong connection I felt for Daniel. The next day we dined at my favorite Italian restaurant. The night was perfect, we talked about our families, values, and plans for the future. We spoke until the wee hours of the morning and by the crack of dawn we knew that our lives were going to be linked together forever. Little did we know then that a year later we would be married and fighting for our right to be together.

From that day, on we began a long distance relationship, speaking to each other every minute that we could steal away from our otherwise busy days. We stayed in touch this way, speaking every day for weeks until we both realized that we needed to see each other again. One day we came up with the idea of going on a cruise. So a few weeks after our first date, we reunited on a cruise of the Caribbean.

Our time on the cruise was spent talking about every subject under the sun, we talked about all the places we would like to visit: wine-tasting tours in Bordeaux, taking a walking tour in the north of Spain, getting to know Daniel’s home country of Mexico, and exploring the national parks of the U.S. It became apparent that we envisioned doing this together.

Shortly after our trip, we decided Daniel should return to Miami so that we could brainstorm together about our options. Since Daniel was a Mexican citizen he would need a visa that permitted him to come to the United States and work, and we soon learned that was no easy matter. Daniel came back in November to celebrate Thanksgiving with my family. I remember thanking God that night for having found the love of my life and my soul mate. This time around Daniel stayed for more than one month. At that point we were probably still a little naïve: we expected Daniel would get a job and apply for a work visa so that we could finally be together once and for all.

Despite his Bachelor Degree in International Relations and Commerce, his extensive work experience, and the business network he had developed, getting a company to petition for a work visa proved to be very difficult. We were shocked and upset that we could not find any legal means that would help us be together. Of course, an opposite sex couple in our situation would have had other options. A young couple falling in love could be brought together by a fiancé visa, something an American citizen can file for a girlfriend or boyfriend to bring that person to the United States so that they can marry and file for a green card. As a gay couple that path was not open to us. Even if we were married, our marriage would not be recognized by the federal government because of the Defense of Marriage Act.

This year, we rang in the new year together and promised each other that we would never be apart again no matter what. As I woke up on New Year’s Day, Daniel surprised me with a beautiful silver ring. He looked at me and promised to spend the rest of his life with me. We began to prepare our wedding and asked our families for their support. Although at first the idea of our marriage shocked our families, they soon came around; they now understand the importance of our union and what being married would mean to us.

Professor (Reverend) Ed Ingebretsen Officiates at the Marriage of Yohandel and Daniel

Living in Florida, a state that has a constitutional ban on same-sex marriage, we had to search for a state where we could marry. After weighing our options, we decided that getting married in our nation’s capital was the best choice. During this time, we learned about The DOMA Project and the work that its team was doing with gay binational couples like us. This reinforced our strong belief that we must follow the most ethical path: fighting for our rights. As an American citizen I felt so frustrated, powerless and discriminated against because I am deprived of the same rights that all other Americans enjoy, simply because I am gay. And what is the right that I most cherish? What is the right that my own government denies me? The right to be with the person I love. Having fled my native country of Cuba, where civil rights were taken away by the dictatorship of Fidel Castro, it is hard for me to accept that I am in the position of fighting for my own rights here in America.

This spring Daniel and I were back in an airport again, but this time we were euphoric; we were not going to be separated. We were going to be married. We flew from Miami to Washington, DC and had our wedding on the National Mall in front of the United States Congress. We timed our wedding so that we could be sure to marry before Daniel’s visa expired. We knew that we may not get another chance. If Daniel returned to Mexico, after having made so many lengthy visits to the United States in the preceding year, there was a very strong possibility that he would not be allowed to enter the country again. Being apart again was not an option anymore. We weren’t willing to hide, or to lie about our love or to compromise our principles. Our families, our friends and all the important people in our lives supported us. We believe that our love is equally worthy of support and celebration, regardless of what one hateful law might claim. We have decided to take a stand for equality, and hoping that our government and the laws of this country will soon catch up with us.

Standing in front of the Ulysses S. Grant Memorial on the National Mall with the dome of Capitol Hill behind us, Daniel and I exchanged vows. Although our families could not join us on our wedding day, our hearts were filled with a sense of joy that we will never forget. It became clear at that moment that we were not only coming together in union as a couple but also marking an important time in American history. Before the ceremony, I looked up at the monument of Ulysses S. Grant and recalled his fight for civil rights.  On our wedding day we joined the great American fight for civil liberty. We knew that the road to equality was going to be a long one and we knew that what lay ahead would be very challenging but we took comfort in knowing that we were not alone in this struggle for equality and that our voices would be heard.

Just Married

Sadly, it only took a few weeks into our marriage to see firsthand the damaging consequences of the so-called “Defense of Marriage Act,” the law that denies the existence of our marriage, but defends no one. In the midst of the excitement of being newlyweds, we received news that Daniel’s grandfather had suddenly passed away. I will never forget holding Daniel’s hand as he spoke to his grandmother and apologized for not being able to be by her side to console her. I remember the guilt in his voice as he spoke to his father and mother. My heart was broken for my husband and there was nothing I could do to make it better. He could not be in Mexico with his family only because the U.S. government refused to recognize him as my husband. How can we explain to his family in Monterrey that he cannot be there because of the “Defense of Marriage Act”? My desperation then turned to anger when I thought about how a heterosexual couple would not even have to worry about that kind of a nightmarish scenario. Though we thought we were prepared for the struggles awaiting us as a binational couple, nothing can ever prepare you when you are faced with such tragedies.

Moving forward, we continue to experience daily reminders that we are second class citizens. Because our marriage is not recognized by the federal government I can’t sponsor Daniel and he cannot obtain a work permit, a driver’s license or even medical insurance. Because of DOMA we cannot plan the future that so many married couples get to create for themselves.

At this point in time, our future is a dream that we have to fight for. Our love should not be seen as any less than my heterosexual friends’ love or than my parents’ love for each other. Our love is just as true and just as important as the love between our President and his wife. Celebrities can marry and then be divorced within weeks and no one blinks an eye. Yet because we are simply gay we are told that our love is not equal, that our love is not real, that our love is not worthy of protection.

We hope that by sharing our story, other gay and lesbian couples in the broader LGBT community will relate and feel empowered to stand united to make America better not only for us, but for generations that will follow. We hope that our children and grandchildren can live in a world free of discrimination where love is equal and not illegal — where human rights cannot be denied by a majority vote.

This summer we joined The DOMA Project to be a part of a campaign to stop deportations, separations, and exile of gay and lesbian binational couples like us. We also made the decision to file for a green card on the basis of our marriage. We will join the many other couples who have formed a national advocacy campaign for “abeyance” to ask the Obama administration to put our green card case on hold, and not to deny it. We need our case to be put on hold so that Daniel can stay and work in the United States legally. We will not allow the Obama administration to simply point to the fact that DOMA is the law of the land. We will demand to be treated as the equal persons that we are. We will demand that our love be respected and honored, just as we cherish it.

VIDEO: For Thousands of Binational Couples Like Jackie & Gloria, The Fight Continues For The Right to Be Together

Every day in this country, thousands of legally married lesbian and gay couples, like Jackie and Gloria, fight for something most of us take for granted — the simple right to be together.

On February 22, 2012, San Francisco Judge Jeffrey S. White became the second Federal District Court judge in America to rule that DOMA was unconstitutional.  The first such ruling came from Boston Judge Joseph Tauro in July 2010.  At the time of his ruling, Judge Tauro was a 79-year old Republican appointee, President Richard Nixon’s longest-serving appointee to the federal bench. Tauro wrote two opinions that summer issued on the same day, each striking down DOMA as unconstitutional.  Nearly two years passed before the appeals of Judge Tauro’s decisions would be heard and decided by the First Circuit Court of Appeals.  As we all know now, last week a three-judge panel of that august appellate court ruled unanimously that DOMA was unconstitutional. The opinion itself was authored by Justice Boudin, an appointee of President George H.W. Bush.

Two more Federal District Courts have also found DOMA to be unconstitutional in just the past two weeks. Yesterday, in New York’s Federal District Court for the Southern District, Clinton appointee, Judge Barbara S. Jones, declared DOMA to be unconstitutional in a case involving the now-famous LGBT rights activist, plaintiff, and widow, Edie Windsor.  Last month, Oakland, California Judge Claudia Wilken  also found DOMA to be unconstitutional in a similar case.  In all there have been five rulings by four federal judges declaring DOMA Section 3 to be unconstitutional, and the unanimous federal appellate court ruling by the First Circuit in the “Gill” case, also striking down DOMA Section 3 as a violation of the equal protection clause of the United States Constitution.

What does this mean for married lesbian and gay binational couples? The argument that the Obama administration should develop and insitute interim remedies immediately could hardly be stronger, as the fate of DOMA is now more wobbly than ever.  And yet the administration has done little to protect our families, instead citing DOMA as a reason for inaction.  We must keep up the pressure on the Obama administration to demand an “abeyance” policy. Green card petitions filed by gay and lesbian couples must not be denied. We cannot accept “DOMA denials” by an administration which has aggressively argued that DOMA violates the U.S. Constitution. No immigration reform or LGBT rights organization is currently engaged in a national “abeyance” campaign that would provide immediate relief for tends of thousands of lesbian and gay couples. The DOMA Project, by contrast, was conceived with exactly this advocacy in mind. To win full equality we must continue to achieve incremental gains. An abeyance policy, pending the final judicial resoultion of DOMA, is the appropriate next step. We must keep the focus on the harm caused every day to binational couples and our families, and we must be relentless. We cannot afford to sit back and wait for change to happen.

The fight is not over for binational couples, but there is some considerable wind at our backs. Make no mistake: the Supreme Court will still have the last word on whether the Defense of Marriage Act, i.e. whether the federal government’s refusal to recognize equally the legal marriages of same-sex couples, violates the U.S. constitution.  And there is no way to know for certain what the outcome will be or when that decision will come. It may be one year or it may be several years. Gay and lesbian Americans have put their lives on hold, spent their savings and sacrificed years of their lives, deprived of stability because they cannot access the green card process. That is not an acceptable status quo and we should not allow it to be our reality one day longer.

Americans have been forced to live in exile with their same-sex partners or spouses, simply because they are gay.  Their struggle continues on a daily basis.  Every day lesbian and gay binational couples are separated by thousands of miles and unable to be together; LGBT families are torn apart, with parents kept apart from their children by this unfair law, and there is something that this administration can do to prevent it. It must end now.
This administration has the power to accept all green card petitions filed by same-sex couples and put those cases on hold, thus providing legal status and employment authorization to every couple.  Gay and lesbian Americans should expect no less from this administration which has said repeatedly that DOMA is unconstitutional. If that is true, then the President should order an immediate moratorium on deportations of spouses of gay and lesbian American citizens.  The President should do what he has done before in other immigration law contexts when such dynamic change is afoot and a law is in a state of flux. President Obama should put on hold all green card cases filed by lesbian and gay Americans for their foreign spouses until the final judicial resolution of DOMA has been determined by the Supreme Court.

Abeyance is the only humane policy to keep thousands of LGBT families, as many as 25% of whom are raising children, together.


Watch: The Fight Continues for Jackie and Gloria

VIDEO: Every day in this country, thousands of legally married lesbian and gay couples, like Jackie and Gloria, fight for something most of us take for granted — the simple right to be together.

Because of the Defense of Marriage Act, the federal government refuses to  recognize, respect or honor their marriages for all legal purposes including immigration.

On April 4, Jackie and Gloria traveled to Boston to witness history. Sitting in a courtroom audience, they listened as judges and attorneys debated whether the Constitution guarantees their right to be treated equally as a married couple.

Less than 60 days later, the First Circuit Court of Appeals became the first appellate court in the United States to strike down DOMA, an important milestone on the road to full equality.

Yet, for Jackie and Gloria, nothing has changed, and they don’t have the luxury of waiting until the ultimate fate of DOMA is decided.

Looking at these two young women — so full of love for each other and wanting nothing more than to build a future together — we cannot allow this cruel and discriminatory law to tear them apart.

(Video by The DeVote Campaign in collaboration with Stop The Deportations – The DOMA Project)

Tom & Glen Fall in Love, Get Married and File a Green Card Petition. Help Us Keep Them Together.

Thursday September 24, 2009 was the day our lives changed. On that day I met Glen while on a visit to San Francisco from New York. It was quickly apparent that Glen was from Australia. He, too, was visiting, with every expectation that he would simply return to Australia after having had a relaxing vacation.

I spotted Glen in a bar in SOMA, the name given for the neighborhood south of Market Street in San Francisco. My first impression was a lasting one, to say the least. He was so handsome, with a mixture of silver and black hair, stunning features, and an incredible smile. As I would learn he was a former Mr. Australia. In just three days I would celebrate my 39th birthday, and I thought that I would be happier living out my days a single man. But on that day, in that place, that all changed.

Eventually, we were having a conversation. Surprisingly, he seemed to know more people in the bar than I did; there were a lot of Australians in town.  I soon learned that Glen knowing everyone would be a common occurrence. Although I have always been outgoing and gregarious myself, Glen is the friendliest, most sociable person I have ever met. I have never seen anyone so compassionate and so genuinely interested in other people. He kept talking to so many people that night that I started to drift away on the impression that he was not interested, at which point he would reach out and touch me on the arm to make sure I knew that he was. At some point I recall Glen got involved in a conversation, and I decided to call it a night. I had to leave early so I could go to a job interview the next morning, and thought I would never see him again.

I was surprised when Glen called me the next morning and set up a date for that evening. We stayed out all night and well past dawn. The energy was just magical. We became inseparable all weekend, and we bared our souls to one another. I told him of all the most difficult trials in my life: my coming out, being gay bashed, the murder of two close loved ones, and how devastated I was by two past relationships. But I told him all the good stuff too: my spiritual beliefs, how I grew and matured and conquered so many fears and built myself into the person I wanted to be. Three days later, on my birthday, Glen told me that he loved me. I was taken aback. I take a word like “love” very seriously and would never have expected to hear it used so soon, but after some hours of soul searching, I decided that I could say the same to him as well.

The next day I flew back to New York and Glen flew back to Sydney. And for the last 32 months we have done everything in our power to maintain our relationship. As boyfriends, as lovers, and soul mates, nothing can be more difficult than the 10,000 miles that separated us at times.

Glen and I talked to each other on Skype every single day after we met, some times as much as four hours a day. It seemed like the only thing I could think about was that gorgeous, sunny, cheery, sweet, sweet, sweet loving man from Australia. Six unbearable weeks passed before I came to visit him in Australia. The 10 days were among the most magical and meaningful of my life. I was completely swept away with how kind and loving he was toward me; no one had ever treated me that way before. He was just the most beautiful human being I had ever known. We spent several more trips together before deciding it was time to live together, about six months after we had met.

Glen decided to apply to school in New York and come on a student visa and enhance his qualifications, but just before he moved forward with that plan he was offered a job in New York and obtained a temporary work visa. From there, Glen moved from one employer to another.  Each time petitions had to be filed and there was some anxiety for us as to whether each would be approved and whether the job would last. Unfortunately, one after another the employment opportunities seemed to fall through just as they were approved by the Immigration Service. Perhaps it was partly bad luck and partly a bad economy. But we struggled to make sure Glen had legal status so we could remain together.

On our first anniversary we traveled to San Francisco to celebrate.  I got down on one knee at the very spot we had met and I proposed to Glen. A few days later he was on a plane to London where he would live until we could find a way for him to return to the United States. Of course, unlike a straight couple in that situation, I could not sponsor Glen for a fiancé visa because of the Defense of Marriage Act (DOMA).  DOMA not only prevents the Government from recognizing the marriages of gay and lesbian couples for all federal purposes, but even prohibits use of the fiancé visa process to bring a same-sex fiancé to the U.S. to enter into a marriage with a gay American.

With Tom's Parents

Glen stayed with a fellow we barely knew in London while I handled the administrative work for a job opportunity. Unfortunately, Glen became seriously ill while in London and even though he was covered by my health insurance in the States, that was useless in the U.K.  He had to go through a long bureaucratic process of several weeks to finally get treatment for his developing pneumonia at a health facility that was basically for the destitute. I was beside myself with worry not only with his health, but also because it was becoming clear that the latest H-1B employment opportunity we hoped would bring Glen back to the U.S. was falling through. We had all but given up on that visa, when the employer surprised us by signing the forms and filing the petition.  These were desperate times, and we clung to every opportunity to be together legally in the United States.

Glen returned to New York and started his new job, but that soon fell apart. The employer was not cooperating, and it was clear Glen would have to find yet another job. Glen is a hard worker. He is the sort of person who can sell ice to Eskimos, and I always assumed that as long as Glen was bringing in the sales money, his employer would do what was necessary under the law to keep Glen around. I was wrong. The employer was abusive and Glen could not take it anymore. I will never forget the day Glen came home in tears, not because his boss had gone into a bizarre inexplicable fit of rage and not because he would lose his job.  He was in tears because he was afraid of being forced to leave the United States and not be with me.

However, it soon looked like things were finally going our way.  Glen quickly got another job and it seemed to hold real promise. But this promise soon turned to misery as well. Glen was now traveling almost full time, and he was completely unhappy. The working conditions were just terrible, and the firm was within a few months of going bankrupt. The point of the job was so we could stay together, and yet we were always apart. After months and months, we gave up. This job too would not be the answer for us.

Because it is so difficult for us to find a way for Glen to stay legally in this country, we know that the only alternative would be for me, as the main bread-winner, to give up the career that I have worked so assiduously to build for years, and move abroad. That most likely means I would be unemployed, either in the UK or Australia. Thankfully, we were able to remain here until my father passed away.  Glen and I did not have to abandon my mother and sister while they tried to manage my father’s Alzheimer’s. At least the haters that claim to be “protecting marriage” had not forced us to leave the land of my birth and deprive a World War II veteran of the support he needed from his son once he became unable to care for himself.

Moving out of the country would not only impact us. I have several employees and pay a hefty amount in federal, state and city income taxes each year. I have a master’s degree and served the country as a diplomat for the U.S. Treasury Department for many years. I support my family and my community and my family wants me here with them. I have ancestors who arrived on the Mayflower and have relatives who fought in every war in our nation’s history to protect this nation’s freedom. It is simply beyond me how any compassionate nation, or any nation with a good sense of its own self-interest, would think it is beneficial to drive me into exile because I am gay and refuse to let go of the man I love.

When all the hopes we had for Glen’s employment visa appeared to have been lost, we decided to move forward with our plans to marry. We also made the important decision to not leave the United States without fighting to be treated equally. We decided to file a green card petition for Glen on the basis of our marriage and we will fight for it to be held in abeyance and then ultimately approved once DOMA is repealed by Congress or struck down by the Supreme Court.

We married in January and submitted an application for permanent residence (a “green card”) for Glen shortly after. We are planning a big wedding celebration in September for our family and friends, and we are hoping that the green card application is put on hold so that Glen will be able to continue to stay in the United States in lawful status.  Our hope now is that the U.S. Citizenship and Immigration Service will delay the processing of our green card petition while the so-called “Defense of Marriage Act” makes its way to the Supreme Court, or is repealed by Congress. In just the last year, a number of federal courts have ruled that DOMA is unconstitutional, a finding that would allow Glen to be treated just like another spouse of an American and let him receive permanent residency. If Immigration Service will wait to receive clarity from the courts, then we can delay the day that I make the devastating decision with regards to my career and my family. That policy decision ultimately rests with President Obama, and despite his strong words of support for marriage equality in May, there are still steps to be taken to protect couples like Glen and me.

We need the Obama administration to stop denying green card petitions filed by married gay binational couples immediately.

We want a resolution for the same reason all other married couples would want to avoid being in this limbo: we want to begin to build a stable future together. With some stability we could then think about buying a home and making choices in our lives that we have had to constantly put off, not knowing what would happen to us in a few months’ time. The years of debilitating uncertainly have worn us down. We did finally decide to get a puppy together, something we had wanted to do for years but had postponed because we did not know if we would be able to stay in our home in New York. There is only one thing in my life that gives me certainty now, and that is the knowledge that Glen and I will remain together. No law, no hate, no immigration authority, no threat of unemployment, and no poverty will ever separate us. Only death, only upon death will we finally part.

We will keep fighting until the Obama administration does the right thing. This is just the beginning and we know we are not alone. We join with tens of thousands of lesbian and gay binational couples who need the protection and security that an “abeyance” policy would offer.

And we can’t wait.

We need it now.

Our Green Card Interview: A Chance for One Lesbian Couple to Share Their Story and to Address Harm Caused By DOMA

Sveta and Andi in Chicago After Their "Green Card" Interview

A milestone is one of a series of numbered markers placed along a road at intervals of one mile that serve to reassure travellers that the proper path is being followed, or a single date during which a certain phase of the project is developed.

Thursday, May‭ ‬24, 2012, was a milestone for us.

On the evening before,‭ ‬my wife, Andi and I boarded a train in our town near Peoria to travel north to Chicago:‭ ‬a quiet three-hour ride,‭ ‬past the corn fields,‭ ‬the wind farm,‭ ‬the small communities of rural Illinois, some familiar down to the layout of their streets and others only vaguely known.‭ ‬We watched the sunset through the Amtrak window,‭ ‬and our mutual nervousness was,‭ ‬for once,‭ ‬only the excitement on the eve of an important event and the anticipation of meeting fellow activist, Brad Mattan, and our lawyer, Lavi Soloway.

On the following morning,‭ ‬at eleven o’clock,‭ ‬we were scheduled to appear at the downtown office of  U.S. Citizenship and Immigration Services for our green card interview.  Andi and I would be given a chance to share our story with an officer who would be forced, at least for that moment, to treat us like all other married couples in order to evaluate whether our marital relationship was real. We looked forward to sharing the evidence that had accumulated over our twelve years together.

How much has changed in a year‭! On this date in‭ ‬2011,‭ ‬‬I was in deportation proceedings and our trips to Chicago then were overshadowed and weighted down by crippling dread and anxiety over the unknown of our shared future.‭ ‬It was during that difficult time in our lives,‭ ‬in Spring of‭ ‬2011,‭ ‬that Andi filed an I-130‭ “‬petition for alien relative” based on our marriage.‭ ‬At that point,‭ ‬we had absolutely nothing to lose by doing so. At that time, our overriding goal was to stop the government from deporting me back to Kazakhstan, a country I left when I was fifteen years old. Asserting our right to a green card, even if we standing up for that right on principle, was a symbolic gesture that we hoped would be taken into account by the Immigration Judge.

The act of filing the green card petition had kindled a small but steady hope. It gave us strength,‭ ‬stemming from self-empowerment.‭ ‬This was a chance to declare our marriage to the government.‭ ‬We dared to be treated equally by a system which for a decade has rendered our family,‭ ‬and many binational families like ours,‭ ‬invisible.

We hadn’t had a reply from USCIS all year,‭ ‬until this spring.‭ ‬And then,‭ ‬suddenly,‭ ‬a date for the interview was set.

We spent the past few weeks gathering the necessary files,‭ ‬documenting our life together as a married couple.‭ Photocopies, ‬photographs, forms:‭ ‬even though the date of our marriage was recent,‭ ‬our shared life has spanned more than a decade: shared lease, domestic partnership declaration from my workplace in 2006, our wills and power of attorney forms, financial records, and a copy of federal tax form from April: the one which we had to fill out as married in order to file Illinois taxes jointly and then discard, submitting federal tax form as single, under DOMA.

Heading into the USCIS Chicago Field Office on May 24, 2012

Though the green card interview was no longer a “necessity” due to my successful asylum application, winning asylum was not the same as being treated equally.  I was forced to apply for asylum and put my fate in the hands of an asylum officer and then an immigration judge, only because of DOMA in the first place.‭ With that back drop, ‬Andi and I could not miss this incredible opportunity to force USCIS to meet with us.‭ And so we would go to the interview as a married couple, to inform USCIS that‭ ‬we would not settle for being treated unequally.‭ ‬

This green card interview was a chance to address the harm DOMA brings within the immigration context,‭ the injustice felt personally by so many families, whose stories I have seen, heard, and remember.

Despite the overwhelming likelihood of denial,‭ ‬we entered the small,‭ ‬sunlit office of a USCIS official with a clear purpose.‭ ‬‬The door of that room was not something I expected to open for us, just a year ago. But here we were now: together,‭ ‬Andi and I stood,‭ ‬raised our right hands,‭ ‬and swore to tell the truth.‎

“‏Are you familiar with the Defense of Marriage Act‭?”‬ the officer asked us.‭

“Yes,‎” ‏my wife answered. I nodded. Not a day passes when I am not reminded of DOMA in some way, be it small or overwhelming.

When it was my turn to answer,‭ ‬I stated my name.‭

My voice must’ve been too soft to hear. The interviewing official asked me to speak up,‭ ‬and so I did:‭ ‬I repeated my married name,‭ ‬louder.‭ ‬And on and on:‭ ‬where I was born and when,‭ ‬when did I come here‭? ‬What name was I given at birth‭? ‬When did we marry‭?

Really.‭ ‬

Sveta and Andi in 2005

When‭?

How can a single date convey a far more complicated fact‭? ‬The celebration of our commitment to each other began much earlier ‬than the date on our marriage license. Long before civil marriage was a legal possibility, we affirmed our commitment again and again,‭ ‬with every signature,‭ ‬every form,‭ ‬every milestone reached,‭ ‬and with every small step made toward the recognition of our family.‭

“‬April‭ ‬2nd,‭ ‬2011,‭” ‬I stated the date of our marriage in Iowa,‭ ‬but in reality, we exchanged our wedding rings six years before.‭ ‬So I said that too.

The question that followed afterwards was not read off the form.‭ ‬It was just a question: ‬When was it‭?

“June‎ ‏15th,‎ ‏2005.‎”

I think he wrote something down on the margin.‭ ‬Did he just make a note of that date as well‭?

An image came to mind,‭ ‬blurry as the inside of that Chicago courtroom seen through my tears,‭ ‬as I watched the immigration judge writing “Svetlana Apodaca,” my married name, down on the final order granting me asylum.

The last time Andi and I walked through the door at the USCIS office, was to attend my initial asylum interview. At that interview, the Asylum Officer dispassionately crossed out Andi’s name on my asylum application and asked me to acknowledge the removal of her from the record‭ ‬to proceed.‭ ‬Today,‭ ‬another government official sat across the table from us,‭ ‬with the sole purpose of taking the facts about our life together to build a record of them.

It felt so commonplace and so simple,‭ ‬this measured routine.‭ ‬Such a sense of normalcy was,‭ ‬in itself,‭ ‬extraordinary;‭ ‬and it was welcome, given how far we’ve come already.

We were asked if we had anything else to add, but what else could we say in conclusion that wasn’t already laid out on the table in front of him?

So then‭ ‬our attorney,‭ ‬Lavi Soloway,‭ spoke with the interviewing official, discussing names and cases in terms which I grew to comprehend only last year by the sheer amount of research out of the desire to learn what we were up against, out of the need to know the names of people affected as we were by the Defense of Marriage Act.

Having Lavi by our side at the interview was a magical moment:‭ ‬unforgettable and inspiring.‭

Andi and Sveta, with fellow activist, Brad Mattan, and their attorney, DOMA Project co-founder, Lavi Soloway

It set the tone for the day: excitement,‭ ‬infectious and overwhelming,‭ ‬and the deeper joy of being able to share this milestone of the much larger battle with The DOMA Project team.‭ ‬Our day was a poignant reminder of how empowering and inspiring it is to find each other, our place, and our voice in this mutual struggle against DOMA,‭ ‬and to work together toward a goal every one of us shares.‎

As I finished writing this post, I learned that DOMA’s federal definition of marriage had been unanimously struck down by the First Circuit Court of Appeals, the first time a federal appellate court had done so.  This is yet another reminder why we must keep fighting to have all green card petitions held in abeyance during this fight for full equality.  We have much work ahead of us,‭ ‬but every day,‭ ‬every doorway entered,‭ ‬every story told,‭ ‬and every record made,‭ ‬brings us one step closer to victory.‭

Here Come The Voices of Change: Producer Brynn Gelbard Reflects on Our Recent Trip to Boston, New York and Charlotte

Brynn Gelbard, Lavi Soloway and Hanh Nguyen in Brooklyn on May 18, 2012

It’s been nearly a week since I returned home to Los Angeles from the first road-trip collaboration between The DeVote Campaign and The DOMA Project. From Boston to North Carolina, we interviewed seven married binational same-sex couples who are struggling to remain together in this country because the Defense of Marriage Act prohibits the recognition of their relationships for immigration purposes. As one half of a binational couple myself whose Irish spouse won a green card in the lottery, I could never have anticipated how profoundly this experience would affect me.

When I first started DeVote two years ago, I was motivated by the need to do something productive rather than wallow in my fury that the passing of California’s Proposition 8 meant I had to postpone my wedding to my girlfriend of nearly seven years at the time. My goal was to create a series of vignettes portraying the scope of humanity unified by the desire to eradicate discrimination against LGBT people. I also wanted to ensure that first hand anecdotes from this time in history were preserved for future generations. I did not see myself as an activist though, but as a writer and filmmaker who relished great characters for their ability to open stubborn minds.

Teaming up with The DOMA Project has been nothing short of monumental for me. I have never been so convinced of the power of stories to invoke change as I am now working alongside spouses from all walks of life who are refusing to keep silent and wait for laws to shift in their favor. Their unrelenting commitment to each other, despite never knowing what tomorrow may bring, fuels my urgency to help them ensure this fight is unapologetically personal.

When we look back upon historical milestones in the civil rights movement, the heroes we speak of are real people like Rosa Parks, who one day just refused to get up from her seat and move to the back of the bus. For countless binational couples, however, the fear of being torn apart has kept them from openly taking a stand. Now that Section 3 of the Defense of Marriage Act has been ruled unconstitutional by several federal judges and the Obama administration has said it will no longer defend it in court, there is hope where there was none before. Guided by their dedication to one another, these husbands and wives are claiming their power to change hearts and minds – the ultimate manifestation of full equality – by discussing how this discriminatory law has affected their lives and families. It is no longer possible for lawmakers, immigration officials, or the general public to deny that there are real people impacted by this injustice. The terms of the discussion have changed precisely because binational couples have come forward, demanding green cards and a policy that values and honors their love and their marriages.

There is one thing that can and must be done so these families are free to get on with the lives that they have so honorably fought for the right to share. When an American applies for a green card for his or her same-sex foreign-born spouse, as heterosexual couples regularly do without incident, it should not be denied. Rather, it should be put on hold while DOMA makes its way through the courts, or is repealed by Congress.

Shooting a video in Charlotte, North Carolina, May 19, 2012

I am forever grateful to these couples for sharing what it has been like to live in love with the constant threat of losing everything. Some have put off having kids and buying their dream house because they never know what the future holds. Others recount sleepless nights wondering if the foreign spouse will be deported to a distant country that is flagrantly homophobic, affording them no options but exile to yet a third country if they are to stay together. There are those living here without status who have faced the harsh choice of whether or not to attend a parent’s funeral overseas knowing it could mean a 10-year bar from returning to the U.S. Many children are growing up without one of their parents present because there is no way for the non-American to legally reside here. Imagine the mother who got a call from her wife that their son had gone blind after a sports accident. She had to explain to him that she could not be by his side because she had only just left the country and could not get back in as a visitor again so soon.

In honor of these binational couples and their bravery, I am proud to step into the role of activist, working with attorney, Lavi Soloway, to ensure their stories are out there for all to see, including elected officials, many of whom want to do the right thing, but need a context to do so. On behalf of The DeVote Campaign and The DOMA Project, later this month, we look forward to presenting voices that will never again be silenced. Here come the voices of change.

Victory! Boston Immigration Judge Grants Reprieve To Dwayne and Bolivar, Postpones Deportation Proceedings

Bolivar signs paperwork before heading to Immigration Court on May 17

Today, a Boston Immigration Judge postponed further deportation proceedings for Dwayne and Bolivar, a married, gay binational couple who have lived together in rural Maine for almost ten years.  Overruling the strenuous objection of the ICE Assistant Chief Counsel, the Judge scheduled the next hearing for October 2012; at that time a final hearing will likely be scheduled for a date in 2014.

Read their full story here: Dwayne & Bolivar: After Nine Years Together, Married Maine Couple Heads to Immigration Court on May 17 to Fight DOMA Deportation.

Like thousands of married, binational couples, Dwayne and Bolivar are hoping for the best case scenario: that the U.S. Supreme Court will rule on the constitutionality of the Defense of Marriage Act (DOMA) in the next two years. Last summer, Dwayne filed a green card petition for his husband, Bolivar, a Venezuela citizen who moved to the United States in 2002. The green card petition was denied in February 2012 solely because of Section 3 of DOMA, which prevents the federal government from recognizing their marriage. With legal representation provided by Stop The Deportations – The DOMA Project, Dwayne and Bolivar appealed the denial of their green card petition to the Board of Immigration Appeals.

Many legal observers believe that the Gill case currently pending before the First Circuit Court of Appeals, will be the first challenge to the Defense of Marriage Act to make its way to the Supreme Court where it is hoped that DOMA will be found unconstitutional as a violation of the equal protection guarantee of the United States Constitution and is struck down.

Today, when Dwayne and Bolivar stood up for their marriage and challenged DOMA, they did so in a court of law on the 8th anniversary of marriage equality in the Commonwealth of Massachusetts. In the intervening years, over 18,462 lesbian and gay couples have married in Massachusetts. Like Dwayne and Bolivar, these couples are now denied access to 1,138 provisions of federal laws protecting and promoting the well-being of families. They remain unequal, all because their marriages are not recognized under DOMA.

Dwayne and Bolivar will continue to work with Stop The Deportations – The DOMA Project to urge that all pending DOMA deportation cases are terminated, administratively closed, or postponed until DOMA has been repealed by Congress or reaches a final judicial determination by the Supreme Court.

Dwayne & Bolivar: After Nine Years Together, Married Maine Couple Heads to Immigration Court on May 17 to Fight DOMA Deportation

Almost a decade ago, I finally escaped one of the most discriminatory countries in Latin America for gay men — Venezuela. Being gay in Venezuela was never an option for me, and it never will be.

On August 18, 2002, I was lucky enough to find myself in Ogunquit, Maine. I was lucky, because on that day I met Dwayne. I had been dancing at one of the local clubs when I bumped into him. We talked, exchanged phone numbers, and planned to go on a date. Unlucky for me, the next day I came down with one of the worst sore-throats I have ever had. I went to the hospital and was discharged — everything was okay, but my date with Dwayne would have to be cancelled (I didn’t want Dwayne to catch my cold.)

How could I have known that Dwayne would catch my heart forever? Dwayne did something very special that night; barely knowing me, and knowing that I was home sick with a cold, he surprised me by coming over anyway. I opened my apartment door to see Dwayne with a smile on his face, groceries in one hand, flowers in the other. He made me homemade soup. My heart turned into jello.

We dated non-stop for the next two months, so much, that my roommate, at the time, was jealous of the time I was spending with Dwayne, and he asked me to leave. When I told Dwayne, I was a little scared. What if I had to move farther away, where we couldn’t date anymore? But Dwayne had another idea in mind, “Well, if you don’t mind a hairy dog…” You can come live with me, he said.

I didn’t mind.

At first, things weren’t easy. Dwayne and I went through struggles in our first two years of dating, but it made us so much stronger. At the time, I was working in Portland, ME, and Dwayne was working in Portsmouth, New Hampshire. Our home was in Lebanon, Maine, a good hour drive to Portland one way and forty-five minutes to Portsmouth.  Unfortunately, I had never learned to drive, or even had a car, and I was terrified at the  thought of either. Dwayne was so loving and generous to me, enough to wake-up every day at 4 a.m. and drive me to work in Portland, drive back to Lebanon to get ready for work, and then drive to New Hampshire. I would wait in the Portland Mall for five or six hours for Dwayne to pick me up after getting out of work himself, and for us to do it all over again each day of the week for two years. Yet, it was all worth it.

One day, suddenly, Dwayne pulled off the side of the road. He turned to look at me and told me: “You’re gonna learn to drive. You can do it.” And with that, he got out and came over to the passenger seat. Next thing I knew, I was driving a truck. Dwayne helped me study for the written permit test, and practice for my driving test, and after passing, I was able to drive. We refinanced our home, and bought a car for me. Dwayne’s days of endless traffic and freeway ramps were finally over (well, for the most part!).

I realized early on that I had to tell Dwayne of the situation regarding my immigration status. When we met I had been on a tourist visa (that would eventually run out), and I had no other options for lawful status at the time. With Dwayne’s help, I contacted lawyers who helped me to prepare an application for asylum. It was filed in April of 2007, only to be denied two years later. I remember the courtroom that day, the Judge had announced that my asylum application was denied, and then he told me that I had to leave the country within sixty days voluntarily or I would be deported. I looked to Dwayne in the back of the court, and then back at the judge and told him that I would never leave Dwayne.

So I filed an appeal of the Judge’s denial of my asylum application. The Board of Immigration Appeals re-opened my case and sent it back to the Immigration Court for another hearing.  I still face deportation, but with the help of the team at Stop The Deportations – The DOMA Project I am more optimistic than I have been in years. Dwayne and I are prepared to fight to be treated with dignity and respect as a married couple. I know, too, that I am one of the lucky ones; I am not detained by Immigration and Customs Enforcement in some remote federal facility; I am employed and have an employment authorization card so that I help contribute financially to our household and continue to live with Dwayne in our home. We continue this fight for our marriage together.

Although I am allowed to stay in this country as long as my case is pending, I do not have the freedom to leave the country and re-enter. I am trapped here until this issue is resolved.  Dwayne and I cannot travel to other countries, and in the case of a family emergency, I cannot travel to Venezuela even for one day, or I will not be allowed back into the United States for ten years.  A few years into our relationship my father in Venezuela became extremely ill. The amount of pain I felt for my family, who I could not help, was immense. I could not visit my father, even for his funeral, when he eventually passed away a couple years ago. As happy as I am to live in a safe country where I can be open as a gay man and fight for equal rights for the LGBT community, I still miss my family.  On birthday celebrations and holidays, my family in Venezuela uses Skype so that we all can be together, even if it’s through a computer screen. My sister in Venezuela puts her laptop on the chair where I used to sit for holidays. When birthdays come around, I have cake sitting next to my computer and my family has one there. We count to three and cut the cake at the same time. This is the life Dwayne and I have been forced to live, cut off from half of our family simply beause the U.S. government does not recognize our marriage and give us the simple freedom it gives to all other married bi-national couples: a green card.

Daisy, the American Hound Dog

Last year, on April 29, 2011, we decided to get married. We had a small ceremony in Somersworth, New Hampshire. Dwayne and I (along with Daisy of course) have been living together for more than nine full years now. We’re a normal loving couple that contributes to our community.  I work for a company that does catering and banquets and Dwayne is an insurance professional. I am lucky enough to have a wonderful relationship with Dwayne’s family. Before his mother passed away I always called her my “American Mom.” She was very loving and supportive.

Dwayne is my husband. He is the man of my dreams, he is the man that I adore, and he is my world. The thought of being separated from Dwayne is more than frightening.  This entire immigration ordeal has been a nightmare for both of us. There is no way that I could return to live in Venezuela, where I have been taken into custody, extorted, forced to give money to the police, or risk being pulverized by the police—only for appearing to be gay. Because of Venezuelan immigration laws, needless to say, Dwayne couldn’t follow me there even if he wanted to.

Now with the help of Lavi Soloway and The DOMA Project, we filed a petition for a marriage-based green card based on my marriage to Dwayne.  If it weren’t for the Defense of Marriage Act, this would lead to a green card for me.  However, due to the discriminatory law that prevents the federal government from recognizing our legal marriage or our nearly ten years together as a couple, Dwayne’s petition was denied. We are left in limbo, waiting for the Board of Immigration Appeals to decide our appeal of the denial of our green card petition while I fight deportation to Venezuela.

We are encouraged by President Obama’s recent statement that he supports same sex marriage and hope that he will build on last year’s immigration policy developments.  We will work to convince USCIS to re-open our denied green card petition, and put their final decision in abeyance until DOMA is stuck down by the Supreme Court or repealed by Congress.  Though only a green card will give bi-national couples lke us the security of true permanent lawful status, the Obama administration can implement an abeyance policy immediately, putting our petition on hold while DOMA works its way through the courts and the legislative repeal process.  We are joining this fight to make sure that no couples are torn apart. I want nothing more than any other married couple wants; I want to be allowed to stay with my husband, so that we can live our lives as Dwayne and Bolivar, together forever.

Senator Kerry Calls on Obama Administration Not to Deny Green Card Petition Filed by Jackie & Gloria, Seeks to Prevent Deportation to Pakistan: VIDEO

Last November, Jackie and Gloria shared their story with The DOMA Project.  Jackie and Gloria met when they were college students, after Gloria came to the United States from Pakistan on a student visa. Now a happily married couple in their twenties living in Massachusetts, the two women are struggling to build their lives together facing an uncertain future because of the DOMA.

Since last year, even after announcing its position that DOMA was unconstitutional, the Obama administration has steadfastly refused to protect married binational same-sex couples. U.S. Citizenship and Immigration Services continues to deny marriage-based petitions filed by gay and lesbian Americans for their spouses, rejecting calls from advocates and elected officials to hold final decisions on those cases in “abeyance,” which would allow married binational gay and lesbian couples to be remain together in the United States without forcing the foreign spouse to lapse into unlawful status. Jackie and Gloria have bravely stood up to defend the rights of lesbian and gay Americans to sponsor their foriegn spouses for green cards and to build futures together without fear of being torn aapart.

In March, Jackie filed a marriage-based green card petition for her foreign-born spouse, Gloria, and joined an advocacy campaigned aimed at persuading the U.S. Customs and Immigration Services to delay making a final decision on their petition until DOMA has been struck down by the courts, so that Gloria can stay in the United States, obtain employment authorization, and eventually, a green card.

They also reached out to their elected officials and to the media to share their experience and highlight the impact of DOMA on married lesbian and gay binational couples.  U.S. Senator John Kerry (D-Mass) wrote to Department of Homeland Security Janet Napolitano on the behalf of Jackie and Gloria, raising the issues they face because DOMA prevents recognition of their marriage, and asking the Secretary to direct USCIS to hold their petition in abeyance.

Gloria and Jackie have recently spoken with local news and press in the area as well.  A local newspaper first ran a news story on Jackie and Gloria.  Both CBS and ABC, local affiliate stations in Boston, Massachusetts have interviewed the couple and reported on their fight to stay together in this country.

Watch Gloria & Jackie interviewed on CBS news

Watch Jackie and Gloria interviewed by ABC news

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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.