LGBT advocates working on immigration issues are hoping the cancelled deportation this week of a gay foreign national living in the United States could be promising news for bi-national same-sex couples in danger of separation.
On Wednesday, Henry Velandia, a gay Venezuelan national, and his spouse, Josh Vandiver, a U.S. citizen, received formal notification from U.S. Immigration & Customs Enforcement saying the agency would no longer pursue deportation proceedings against Velandia.
After coming to the United States in 2002 legally on a visitor’s visa, Velandia faced potential deportation after he remained in the United States after his visa expired in six months.
To allow him to remain in the United States, Vandiver sought to obtain a green card for his spouse, whom he legally married Connecticut, through a marriage-based application. However, ICE had informed the couple the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage, prevented the agency from issuing Velandia a green card.
On May 6, Velandia faced a hearing before an immigration judge, who could have ordered deportation, separating him from Vandiver for at least 10 years. However, Riefkohl halted deportation proceedings against Velandia because of a recent order that U.S. Attorney General Eric Holder issued on the previous day to vacate similar deportation proceedings in the case for another New York same-sex bi-national couple.
The notification that the couple received on Wednesday closes the deportation proceedings and marks the first time ICE has administratively closed the such proceedings against the spouse of a gay U.S. citizen.
In a statement provided to the Washington Blade, Vandiver said the notification of the decision on Wednesday was “the second happiest day of my life, second only to the day Henry became my husband.”
“On Wednesday, Henry and I learned that the government was no longer trying to tear us apart and destroy our marriage,” Vandiver said. “Now we can start building our future together. This is the fruit of a hard-fought struggle over the past year to bring recognition to the terrible harm DOMA is causing same-sex binational couples.”
“Wednesday’s decision closing Henry’s deportation case is the first sign of hope that these deportations are finally ending and it’s our deepest hope that it has a positive impact across the country for all couples like us,” Vandiver added.
The new development has LGBT rights supporters working on immigration issues looking to the Velandia case and Vandiver to have an impact to help other deportation proceedings facing bi-national same-sex couples living in the United States.
Steve Ralls, spokesperson for Immigration Equality, also said his organization intends to press the administration to make sure other couples that are facing similar separation under immigration law are treated the same as Velandia and Vandiver.
“We have married bi-national couples in places like Vermont, New York and California that are facing separation before the end of this summer,” Ralls said. “We expect that ICE’s message in Henry and Josh’s case is they are no longer prioritizing the deportation of gay spouses and we expect other couples to receive the same treatment.”
Lavi Soloway, a New York-based immigration lawyer who handled Velandia’s case, said the decision to close proceedings in this situation shows the administration has leeway to stop deportations in similar cases.
Soloway, founder of Stop the Deportations, said he plans to draw on the Velandia decision when he appears in a San Francisco immigration court on July 13 to stop the potential deportation of another foreign national, Alex Benshimol, who married his partner Douglas Gentry.
“It demonstrates the ability of ICE to use its prosecutorial guidelines to protect bi-national couples from being torn apart by deportation,” Soloway said. ”The circumstances are very similar.”
But whether this case will have an impact on others remains to be seen. Gillian Anderson, an ICE spokesperson, confirmed that her agency filed a motion to close proceedings in the Velandia case, but maintained her agency continues to enforce the law.
“There has been no change in policy with regards to deportation cases affected by the Defense of Marriage Act,” she said. “Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the executive branch, including [the Department of Homeland Security], will continue to enforce it unless and until Congress repeals it or there is a final judicial determination that it is unconstitutional.”
Observers say the decision to close proceedings in the Velandia case could be related to a memo ICE issued on June 17 listing situations in which enforcement agents may decide to exercise prosecutorial authority and dropped proceedings against undocumented immigrants living in the United States.
While the memo doesn’t explicitly offer protections to gay couples, it states undocumented immigrants with “family relationships” in the United States, or individuals with a “U.S. citizen or permanent resident spouse” may be considered for discretion.
Ralls said the similar timing of the distribution of the memo and the decision to terminate proceedings against Velandia was noteworthy and said it could mark an “unofficial” change in administration policy.
“I believe we’re beginning to see some dots being connected that can lead us to the assumption that there is now an unofficial policy that the White House does not want to see these couples torn apart,” Ralls said. “I certainly hope that’s the case, and more and more, I think we’re seeing a gradual evolution leading in that direction.”
But Soloway said the new guidelines are similar to memos that were already in place even before the Obama administration emphasizing the deportation of criminals and others who would endanger the safety of Americans should be a priority as opposed to law-abiding immigrants or immigrants that have family relationships in the United States.
“So the June 17 memo is a clarification that really gives much more detailed guidance than we had previously, but there’s no departure in the June 17 memo from the existing guidelines,” Soloway said. “It just offers more examples and a little bit more guidance than what previously existed.”
Even with ICE agents allowed to exercise prosecutorial authority to discontinue deportation proceedings against gay foreign nationals in relationships with U.S. citizens, LGBT immigration groups are still seeking a blanket moratorium on these proceedings to ensure they stay together in the United States.
Ralls said the Obama administration has already set a precedent to suspend deportations of undocumented immigrants in relationships with U.S. citizens. In 2009, Secretary of Homeland Security Janet Napolitano granted deferred action to undocumented immigrant widows who were married to U.S. citizens for fewer than two years before to their spouse’s death.
“They should receive explicit direction from the White House to [issue a moratorium], and we’re not going to step back from that call until we have an assurance that none of the families in this situation will be torn apart,” Ralls said.
Soloway said the memos on exercising prosecutorial authority are helpful and offers the U.S. government “the opportunity to do the right thing on a case-by-case basis,” but still isn’t the more clearly articulated moratorium that LGBT advocates are seeking.
“Nobody’s fate should be subject to the discretion of a specific ICE officer or agent,” Soloway said. “There should be a policy coming the administration that specifies that these deportations should be halted.”
The fight to obtain this moratorium could be an uphill battle. White House Press Secretary Jay Carney has indicated that President Obama believes legislative action on immigration issues is needed — as opposed to a moratorium — and “he can’t just wave a wand and change the law.”