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.
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."
