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Gay binational couple gets deportation reprieve
From a news release, posted May 6, 2011
2011-05-11

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WASHINGTON, D.C.—On May 6, an immigration judge in Newark, N.J., issued a ruling on the deportation of Henry Velandia, a Venezuelan citizen legally married in 2010 to Josh Vandiver, an American citizen, according to a press release from Marriage Equality USA and GetEQUAL.

Immigration judge Alberto Riefkohl ordered that deportation proceedings against Henry Velandia be put on hold, granting an adjournment until December, thereby temporarily stopping the process of his deportation to his native Venezuela. Immigration and Customs Enforcement Assistant Chief Counsel David Cheng, the attorney prosecuting the case on behalf of the Department of Homeland Security, agreed to the adjournment.

The judge adjourned deportation proceedings against Velandia on the grounds that the marriage-based green-card petition filed by Joshua Vandiver was still pending and because of the potential implications of a move by Attorney General Eric Holder in a related case that may signal a shift in the Administration's interpretation of the law as it concerns same-sex binational couples.

On May 5, Holder intervened in the case of another gay binational couple in New Jersey who had sought recognition of their civil union for immigration purposes. That couple lost their case on appeal at Board of Immigration Appeals (BIA) and had filed a lawsuit in the Third Circuit Court of Appeals. The attorney general "vacated," or set aside, the decision by the BIA and directed the BIA to issue a new opinion focusing on the whether a same-sex partner could qualify as a spouse under the Immigration and Nationality Act. This is the first time an attorney general has used the power of BIA's review to intervene on behalf of a same-sex couple. The specific instructions given to the BIA suggest that the attorney general is considering whether the Defense of Marriage Act (DOMA) is unconstitutional when applied against same-sex couples in the immigration context.

Despite legally marrying in Connecticut in August 2010, Vandiver (a Ph.D. student at Princeton University) is currently prohibited from sponsoring Velandia (a salsa dancer, instructor and founder of a Princeton-based dance studio) for a green card, unlike heterosexual married couples in the same situation. Because of DOMA, the federal government does not recognize same-sex marriages, even if those marriages were performed in states that do legally recognize those unions.

"Though this case is far from settled, we are all certainly breathing a sigh of relief this afternoon that Henry and Josh have a bit of time to re-group, re-connect, and re-strategize about how to move forward," said Robin McGehee, director of GetEQUAL. "It's unbelievable that couples like Henry and Josh are being forced to go through the emotional and financial stress of this process, while straight couples experience nothing of the sort—we're committed to standing beside this couple, and the tens of thousands of other same-sex binational couples who are facing similar scenarios across the country."

"The power of love is unstoppable. Imagine meeting your soul mate and being unable to stay together because of marriage discrimination. Let's make this temporary victory for Henry and Josh permanent and applicable to all. Let's stand for love and justice for all," said Molly Mckay, media director of Marriage Equality USA.

Velandia's husband, Josh Vandiver, had filed a marriage-based "alien relative" petition on his behalf in 2010 but it was denied in January on the sole grounds that their marriage, though legal in the state of Connecticut, was not recognized for immigration law purposes because of the Defense of Marriage Act (DOMA). After the president announced in February that he would no longer defend DOMA in federal court challenges because he believed the law was unconstitutional, Vandiver re-filed the marriage-based petition on behalf of his husband. That petition remains pending with U.S. Citizenship and Immigration Services and has not been denied.

Lavi Soloway—the couple's lawyer as well as founder of StopTheDeportations.com and co-founder of Immigration Equality—said, "Today we have won an important victory by stopping the deportation of Henry Velandia. The immigration judge has demonstrated that it is appropriate to proceed with caution when a marriage-based green card petition is pending precisely because the law and policy impacting lesbian and gay binational couples is in a state of flux.

"The immigration judge has acted to protect Josh and Henry from being torn apart at a time when new developments suggest that potential solutions for binational same-sex couples may be on the horizon. However, the adjournment granted today only temporarily postpones removal proceedings. The administration must act now to institute a moratorium on all deportations of spouses of gay and lesbian Americans to ensure that all same-sex binational couples are protected until the fate of DOMA is determined by Congress or the Supreme Court."

Vandiver said, "We thank the immigration judge for looking carefully at our case and seeing us for who we are: a loving, married couple that wants only to be allowed to build a future together like any other couple. The judge made the right decision, an important decision: he recognized our relationship and he protected us by postponing these proceedings today and stopping Henry's deportation from happening.

"This is only a temporary reprieve, however. We have to go back into this courtroom again a few months from now. Meanwhile, Henry's deportation still looms over us. We are breathing a sigh of relief that we will be able to live in peace for a few more months, now that the immediate threat of deportation has been removed. We treasure every day we have together. But couples like us are still being torn apart every day. Every day, spouses of gay and lesbian Americans are facing deportation and denied access to green cards only because of the Defense of Marriage Act.

"That's why, after a deep breath, we are headed back to the trenches. With our allies, we will continue to urge the President to instruct Secretary Napolitano to issue a moratorium on the deportation of all spouses of gay and lesbian Americans. Until then, our marriage is still in danger."


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