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.”

BACKGROUND

Cristina and Monica have fought a high-profile battle against the Defense of Marriage Act (DOMA) and deportation proceedings since joining the Stop The Deportations campaign last summer.

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 17^th 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
Phone 323-599-6915
Email StopTheDeportations@gmail.com

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

“Bi-National Lesbian Couple Can Press US Marriage Claim: In unprecedented move, Immigration Judge adjourns deportation proceeding amidst DOMA litigation,” Gay City News, March 22, 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

“Love May Conquer All in DOMA Challenge Case: In October 2010, A Group of Married, Binational LGBT Couples Came Together to Form Stop the Deportation,” GO MAGAZINE, April 7, 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

Monica & Cristina Take DOMA Deportation Fight to Board of Immigration Appeals, Challenging a 29-Year Old Precedent

MSNBC: Binational Couples Fighting for Full Marriage Equality and for the Right to Stay In the U.S.

See full article here.

Monica & Cristina Fight for Their Marriage at the Board of Immigration Appeals, As NYC Celebrates Marriage Equality

Stop The Deportations Teams Up With Lambda Legal: Fighting DOMA at the Board of Immigration Appeals

Lambda Legal Files Amicus Brief To Urge Immigration Officials to Stop DOMA Deportation of Monica Alcota, and All Same-Sex Binational Couples

Cristina Ojeda and Monica Alcota

On July 11, Lambda Legal Defense joined the fight to stop the government from tearing apart Cristina Ojeda and Monica Alcota, a married, binational lesbian couple in Queens, New York. The nation’s oldest and most respected LGBT legal organization filed a friend-of-the-court brief at the Board of Immigration Appeals after the U.S. Citizenship and Immigration Services (USCIS) denied the couple’s marriage-based immigration petition.

Cristina and Monica have fought a high-profile battle against the Defense of Marriage Act (DOMA) and deportation proceedings since joining the Stop The Deportations campaign last summer.

In March, New York Immigration Judge Terry Bain, acting with the agreement of the Immigration & Customs Enforcement prosecuting attorney, postponed Monica’s deportation hearing on the basis that Cristina had filed a marriage-based “green card” petition for her. Monica and Cristina are scheduled to return to court in December for another hearing to review the status of that petition.

In April, USCIS denied Cristina’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.  (That case involved a gay binational couple, Anthony “Tony” Sullivan and Richard Adams, who had fought and lost a legal battle against the then-INS.  In 1996, Lavi Soloway wrote this article about the couple and their fight on the occasion of their 25th anniversary. Tony and Richard recently celebrated their 40th anniversary and are still fighting for equality and justice for binational couples.)

Cristina 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.

Lambda’s amicus brief to the BIA argues that immigration officials are attempting to incorrectly apply the findings of the Adams v Howerton case to find a reason to deport Monica Alcota.

Lambda is coming to Monica’s defense with a brief that argues that Adams v Howerton has been superseded by multiple intersecting legal and legislative developments since 1982. Many modern recent developments for same-sex couples have occurred since 1982, including the rise of jurisdictions where marriages and civil unions between same-sex couples are recognized to be lawful, and where pending federal litigation are challenging the constitutionality of the Defense of Marriage Act.

Despite the obvious inapplicability of Adams v Howerton, USCIS continues to tear apart same-sex binational couples in situations similar to that of Cristina and Monica, ignoring their marriages. While Immigration and Bankruptcy Courts across the nation are showing flexibility in dealing with married same-sex couples, USCIS, which is part of the Department of Homeland Security, seems unwilling to entertain that option.

Lambda’s urged the immigration officials to exercise prosecutorial discretion to administratively close or postpone all pending immigration cases involving married same-sex couples, at least until DOMA is either repealed, or declared unconstitutional. Absent DOMA, there would be no obstacle to the approval of  the marriage-based “green card” petition filed by Cristina for Monica. Tens of thousands of lesbian and gay Americans would have equal access to the family unification provisions of U.S. immigration law, just like all married couples.

See Lambda’s complete press release and the amicus brief filed in support of Cristina Ojeda and Monica Alcota here.

Obama Will Not ” Win The Future” In Time For Spouses of Lesbian & Gay Americans Facing DOMA Deportations

This comprehensive report on the crisis of DOMA deportations demands that the Obama administration act immediately (it was cross posted at Pam’s House Blend).  It is a must-read for anyone following the progress of our Stop The Deportations campaign.

We started this work in 1993, just three years after U.S. immigration law was amended to remove the bar on admissibility of gay and lesbian non-citizens.  In the intervening 18 years we have helped to build a diverse movement of binational couples, organizations and advocates.  We have raised the profile of this issue for the general public,  elected officials and major LGBT and immigration reform organizations.

Last July, we launched a new strategy called The DOMA Project. Beginning with the Stop The Deportations campaign our effort was designed to highlight what we believe is the core issue for binational couples: marriage (in)equality. We did this by challenging DOMA in Immigration Court. The message could not be simpler: married same-sex binational couples should be protected by the family unification provisions of our existing immigration laws just like all other married binational couples. The only obstacle that remains is DOMA.  For that reason we have argued that until DOMA’s fate is determined by Congress or the courts this administration must stop deportations that separate lesbian and gay couples, destroying marriages and families. Fighting to halt deportations is a vital part of winning full equality for all binational couples.

Participant couples include those who are separated, those who are exiled, those facing imminent deportation and those who are together in this country but who are living in fear of an uncertain future.

As the architects of this new DOMA-focused campaign we have catapulted the issue of binational couples into the media and brought the crisis of “DOMA deportations” to the White House itself.  You can help us continue this momentum.

To achieve full equality we need your participation and support. Our own personal stories remain our most valuable tool. We have developed a unique blend of legal strategy and advocacy for every couple involved in the Stop The Deportations campaign—strategies that protect them and advance the broader goal of defeating DOMA. Contact us here to find out how you can get involved. It can be as simple as sharing your story and does not require revealing any identifying information. We are also accepting donations to help us expand this effort, in partnership with the Love, Honor, Cherish Foundation.

As part of this pro bono project we have provided free legal advice to binational couples who are separated, exiled or facing deportation. We have collaborated with other attorneys, activists and organizations providing strategic support as binational couples face deportations hearings in Immigration Courts around the country.

And most importantly, we are winning.

We have stopped four deportations in four months. In each case, the government has agreed to allow the couple to remain together for now. In doing so, the government demonstrates that it can respect their relationship, even while DOMA still prevents recognition of their marriage.

(Read about these victories: Anton & Brian, Rodrigo & Edwin, Monica & Cristina, and Henry & Josh.)

The weeks and months ahead will be extremely busy here at Stop The Deportations.  We are confident that we will get our message through and that we will win interim protection for all couples until the day that DOMA is finally repealed or struck down by the Supreme Court. This fight is a part of a larger battle to win full equality.

TOWLEROAD: White House Pushes Immigration Reform When Asked About Halting DOMA Deportations

See original post here.

Andrew Sullivan: DOMA Tearing a Marriage Apart

AmericaBlog: DOMA Rips Apart Married Binational Couples

QUEERTY: Cristina & Monica Face DOMA Deportation Hearing in December, They Need Repeal Now!

Cristina & Monica Featured in Video Highlighting DOMA’s Harm on Married Binational Couple Fighting Deportation

IPS: Activists Fight Deportations of Gay Couples

See full article here.

“After Erwin de Leon successfully defended his dissertation, he felt relief at being closer to earning his doctorate in public and urban policy. But the achievement also meant that time was running out to find a way to stay in the United States.

Despite the fact that de Leon, a Philippine international student, is married to a U.S. citizen, John Beddingfield, both live in uncertainty about the future of their family.

The hopes of de Leon and other activists were raised earlier this year when President Barack Obama declared that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. This section defines marriage as “a legal union between one man and one woman”.

On Apr. 6, a coalition of member organizations of the American Immigration Lawyers Association sent a letter to the Department of Homeland Security emphasizing family unity, for straight and gay couples, as a guiding principle of U.S. immigration law.

The co-founder of the campaign Stop the Deportations-The DOMA Project, Lavi Soloway, told IPS that “more than 65 members of Congress requested the White House to hold green card applications in abeyance and suspend the deportations.”

Soloway cited the hold placed on deportation proceedings for Argentine immigrant Monica Alcota, who is married to Cristina Ojeda, a U.S. citizen, by a New York immigration judge in March as a turning point in the debate.

Although de Leon and Beddingfield have been in a committed relationship for close to 13 years, they have yet to fully settle down and buy a house. “We really don’t know what is going to happen, we might have to move to Canada or another country in the following years,” de Leon told IPS.

To guarantee residency rights for gay couples, Democrats in both the House and Senate re-introduced the Uniting American Families Act (UAFA) on Apr.14. But Soloway said that with the House dominated by Republicans and the Senate by Democrats, the “Congress is frozen.”

He said that the UAFA has gained more supporters during the 11 years it has been debated in Congress, but is still far from having a majority of votes. Thus, one possible solution for the project to move forward is its inclusion in a comprehensive immigration reform package.”

Princeton University Hosts Marriage Equality Event Featuring Josh & Henry’s Fight Against Deportation

Excerpted from the Daily Princetonian, April 14, 2011:

The Frist Campus Center Multipurpose Room, decorated with floral confetti, white drapery and event schedules decorated with silver borders, looked fit for a wedding on Thursday afternoon at the “Speak Now for Marriage Equality” panel and discussion session organized by the Princeton Equality Project.

Deans of Religious Life Alison Boden and Paul Raushenbush joined Joshua Vandiver GS, his Venezuelan husband Henry Velandia and the couple’s attorney Lavi Soloway in a five-member panel that shared different perspectives on marriage equality and discussed the impact of U.S. marriage laws on the LGBT community.

PEP, a student-run organization at the University working to realize full LGBT equality, dedicated the event to Vandiver and Velandia’s fight against the Defense of Marriage Act. This February, the Obama administration recommended that DOMA no longer be defended in federal courts because it prevents the federal government from recognizing same-sex marriages.

Velandia and thousands of others are threatened with deportation because DOMA bars Americans such as Vandiver from sponsoring same-sex spouses for green cards.

Boden opened the panel with an invocation in honor of the event’s wedding theme. “Dearly beloved, we are gathered here today to witness and celebrate the equality of all people and of their civil liberties,” she said. “We are grateful most for those we cherish, those who fill our hearts with love and for whom our hearts pour out such love in return that we cannot begin to measure.”

Vandiver shared how he and Velandia met at the University and married last August on “one of those late summer days, green and gorgeous in eastern Connecticut.” Two days after the marriage, he filed a petition for his husband’s residency and green card.

However, Vandiver’s application was rejected this February. Velandia is scheduled for a deportation hearing on May 6. If the hearing goes against him, he could be required to leave the United States and be barred from returning for a minimum of 10 years.

Vandiver talked about the couple’s petition to Secretary of Homeland Security Janet Napolitano to stop the deportation of people in Velandia’s situation until the DOMA dilemma is officially resolved. “She has the power to do that immediately,” Vandiver said. “She’s done it for other groups, and she could do it in our case as well, but the broader struggle is to repeal DOMA.”

“We can’t trust in our presidents or our Congress; we have to work very hard to encourage them to bring about the change,” Vandiver added. “They may have promised that they want to do it, but they need us behind them to do it … That’s what Henry and I are trying to do, both to save our own marriage and the marriages of dozens and dozens of couples.”

As an immigrant from Venezuela, Velandia talked about his journey of self-discovery as he came to terms with his “identity as a gay man” while trying to “live the American Dream.” He talked about his happiness upon finding Vandiver and referred to him as his “life.”

“I fell in love with him the first day,” he said. “It’s like a horror movie to imagine that we could be separated.”

Soloway, a lawyer who has represented binational same-sex couples for 18 years, recently won a case to stop the deportation of Monica Alcota, the wife of American-born Cristina Ojeda. The judge allowed Ojeda to petition U.S. Citizenship and Immigration Services to have Alcota recognized as her spouse and provide residency.

Soloway urged the audience to reach out to Senator Lautenberg and Senator Menendez of New Jersey to join the fight against DOMA.

After the panel concluded, the audience was encouraged to sign the online petition “Save Our Marriage — Stop the Deportation of Henry Velandia,” which already has nearly 3,000 signatures, attend a reception and enjoy wedding cake on the South Frist Lawn.

According to PEP president Andrew Blumenfeld ’13, the program was a success, with over 80 people writing letters to their congressmen asking them to recognize the difficulties of couples like Vandiver and Velandia.

In an interview after the panel, Vandiver and Velandia expressed their frustration at the DHS’ lack of response to last week’s letter from 12 senators. The movement, led by John Kerry, urged U.S. Attorney General Eric Holder and Napolitano to stop defending DOMA in federal courts.

With Velandia’s hearing less than four weeks away, “they need to make a decision very soon,” Vandiver explained.

Velandia noted that leaving the United States was not an option for the couple, explaining that moving to his native Venezuela would be very dangerous for them as a same-sex couple and that the move could have a destructive effect on Vandiver’s career.

“Josh is aiming to be a professor in the States. That’s where he was born, and that’s where he deserves to stay,” Velandia said.

Metro Weekly: DOMA’s Immigration Imbroglio

See full story here.

Josh & Henry Meet With Congressman Rush Holt, Gay City News Reports on Progress and Setbacks

Excerpt from “Progress–and Fits and Starts–on Immigration,” Gay City News, March 31, 2011.

“In a dizzying — and not fully transparent — series of developments this past week, the prospects for married same-sex bi-national couples hoping to stay in the US showed improvement, though how far-reaching the gains are remains uncertain as of press time.

In what appears to be the first such action of its type, an Immigration Judge in Manhattan, who works under the Justice Department, on March 22 adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

Also last week, Newsweek reported that the heads of two district offices, in Baltimore and Washington, DC, of the US Citizenship and Immigration Services (USCIS) — which is part of the Department of Homeland Security — had separately stated publicly they have put on hold the processing of any applications for spousal recognition or green cards from married same-sex couples. Such applications have routinely been denied in the past, so by putting them instead “in abeyance,” USCIS would be strengthening the arguments a married same-sex couple would have in deportation proceedings before an Immigration Judge.

In comments made to Metro Weekly on March 28, a USCIS spokesman in Washington said the abeyance policies adopted by the DC and Baltimore offices were now in place nationwide, a development that would represent a huge victory. After Metro Weekly published that news, however, another Homeland Security official told the newspaper that the abeyance was temporary — perhaps as short as a week — designed only to allow the department’s general counsel to examine the impact of the Justice Department’s February announcement that it now views the denial of federal recognition of same-sex marriages mandated by the Defense of Marriage Act unconstitutional. DOMA is the basis on which USCIS has to date denied applications for spousal recognition or green cards from same-sex married couples. Precisely where that Homeland Security clarification leaves the issue remains unclear.

[Update: On the morning of March 30, after the publication and posting of this story, Metro Weekly reported that USCIS stated that the temporary policy of abeyance has ended as a result of a new guidance from internal counsel. A spokesman told that newspaper that applications from married same-sex couples would once again be processed as they have been previously, in compliance with DOMA. That spokesman, Christopher Bentley, later told Gay City News that the end of the abeyance period applies in Washington and Baltimore as well as in the rest of the nation. He also said, however, that none of the discretion USCIS or Homeland Security had under the law previously has been curtailed as the result of the Justice Department's February statement that DOMA would continue to be enforced.]

The victory last week in Manhattan was less ambiguous, though the specific steps forward for the couple are not yet known. Monica Alcota, 35, who came to the US a decade ago, married her partner of nearly three years, 25-year-old Cristina Ojeda, last August in Connecticut. The couple’s attorneys, Lavi Soloway and Noemi Masliah, argue that their clients’ marital status should qualify Alcota for permanent residency, as would be the case with any different-sex couple.

A 2010 US court ruling striking down the Defense of Marriage Act’s denial of federal recognition for legal same-sex marriages, they say — coupled with the Justice Department’s recent announcement regarding DOMA’s constitutionality — opens up the real possibility that Alcota and Ojeda may win recognition from the US government. At the US courthouse in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the USCIS through what is known as Form I-130, a petition to have Alcota recognized as “the spouse of USC.”

For now, the couple’s case has been adjourned until December, a decision supported by the government’s attorney.

“It is almost impossible to overstate the significance of what happened in there,” Soloway said immediately after the hearing. “An adjournment based on an I-130. It would never have happened a year ago. I don’t think I even would have filed it.” Describing the development as “huge,” Soloway also credited Bain with being “very kind, very generous” in her handling of the case. Masliah echoed her law partner’s assessment, terming Bain’s action “benevolent”; she added, however, that it is also “realistic in light of recent developments.”

Steve Ralls, a spokesman for Immigration Equality, which advocates on behalf of bi-national gay and lesbian couples whose right to stay together in the US is threatened, agreed with the assessments by Soloway and Masliah that Bain’s action was both significant and appropriate in the current context. “It sounds like what happened in this case is what should have happened,” Ralls said. “We have other families planning to file I-130s, and this should be good news for them.” To the best of his group’s knowledge, he said, Bain’s move was unprecedented.

Last week, Immigration Equality wrote to Holder asking that proceedings against immigrant same-sex spouses facing deportation be placed on hold while the DOMA issue remains in the courts.

For Alcota and Ojeda, the legal developments of the last eight months represent some respite from what has been “hanging over our heads,” Ojeda explained — “that I would lose her.” That’s exactly what happened to Ojeda — for three months, at least — in 2009. As the Queens couple was traveling by bus through upstate New York, a spot border control check resulted in Alcota being detained by immigration officials. She ended up in a detention center in Elizabeth, New Jersey, from which she could have been deported at any time.

Finally, an Immigration Judge — a woman, the couple noted — saw Alcota and determined she had “a reasonable fear” of persecution should she be returned to Argentina. She had fled her home country, where she lived in a region near the Chilean border, with her then-partner because the two believed their lives were at risk. Soloway said if court challenges to DOMA ultimately prove unsuccessful, he would argue Alcota deserves asylum based on her provable fear of persecution back home.

After the ten-minute hearing, Alcota remained nervous, the adrenalin apparently not yet having worked its way through her system. Still, she expressed relief that she will have the chance to fight for the validity of her marriage. “Now I feel relieved,” Alcota’s spouse Ojeda said. “That they are going to give us a chance to argue our case.” Ojeda said Bain’s action “acknowledged our marriage.”

With DOMA litigation and the status of Ojeda’s I-130 likely to still be open questions in December, Alcota’s next appearance before Judge Bain could amount to nothing more than a perfunctory status update and further adjournment.

Josh Vandiver, 29, and his Venezuelan-born husband, Henry Velandia, 27, who live in Princeton and are also clients of Soloway’s, find themselves in a somewhat different position than Ojeda and Alcota. With Velandia facing a deportation hearing on May 6, the couple endured a setback when, in early February, Vandiver’s I-130 application was rejected — in lightning speed, according to Soloway. Just days before their motion to the Board of Immigration Appeals challenging that denial was due, however, the Justice Department issued its new position on DOMA’s constitutionality, giving added strength to Vandiver’s claim that his spouse ought in fact be recognized as his spouse for immigration purposes.

Soloway drew on the Justice Department’s February DOMA statement in finalizing the appeal motion, but on his advice, the couple has now decided to drop the appeal route in favor of resubmitting an I-130, along with a green card application. News of the abeyance policy acknowledged by the USCIS’ Washington and Baltimore district offices certainly lent comfort to that decision — and the suggestion on Monday from the agency’s national spokesman that all applications might now be on hold seemed the best news of all.

For Vandiver and Velandia, who attended a March 28 immigration forum in Princeton where their congressman, Democrat Rush Holt, committed to pressing Homeland Security to handle I-130 applications like theirs in a way that will not lead to deportations, the situation nevertheless remains unsettling.

“We are still worried that until the Defense of Marriage Act is defeated, Henry can’t get his green card, which will protect him,” Vandiver said. “Henry’s deportation is still looming. We have a hearing on May 6.”

Noting that matters are still very much in the hands of the Immigration Judge they happen to face, Vandiver acknowledged that the Obama administration’s changed tune on DOMA was the most positive development he and Velandia had seen. “If not hope,” he said, “at least it provided relief that the most powerful officeholder is aware of the pain caused by DOMA. A sense of relief and an appreciation on our part.”