April 3, 2012 | by Chris Johnson
Bi-national gay couples file lawsuit targeting DOMA

A new lawsuit was filed Monday challenging the constitutionality of the Defense of Marriage Act — this time on the grounds that it discriminates against married bi-national same-sex couples seeking to remain together in the United States.

Immigration Equality, an LGBT advocacy group, filed the case in the U.S. District Court for the Eastern District of New York on behalf of five gay couples. The law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP joined the organization in filing the lawsuit.

The lawsuit, known as Blesch v. Holder, targets the inability of these spouses to secure residency in the United States through the marriage-based green card application process.

Americans in opposite-sex marriages can sponsor their foreign spouses for residency in the United States, but that option isn’t available to same-sex couples because of DOMA. These couples are at risk of separation if the foreign national is undocumented or if a temporary visa obtained for work or some other purposes expires.

“Because of DOMA, the federal government does not recognize the marriages of same-sex couples and, therefore, denies them the immigration rights afforded to other married couples,” the complaint states. “As a result, these couples live their lives at constant risk of separation.”

The five couples represented in the lawsuit are Edwin Blesch and his South African spouse, Tim Smulian, who reside in Orient, N.Y.; Frances Herbert and her Japanese-born spouse, Takako Ueda, who reside in Dummerston, Vt.; Heather Morgan and her Spanish-born spouse, Maria del Mar Verdugo, who live in New York City; Santiago Ortiz and his Venezuelan-born spouse, Pablo Garcia, who live in Elmhurst, N.Y.; and Kelli Ryan and her British-born spouse, Lucy Truman, who reside in Sandy Hook, Conn.

The complaint details the stories of each of the couples involved in the lawsuit. For Blesch and Smulian, the complaint notes that Blesch has been living with HIV since 1987. For 11 years, the couple spent six months in the United States and six month abroad to stay together.

However, according to the complaint, complications from HIV therapy as well as other health problems have begun taking a toll on Blesch’s health. As a result, he’s no longer able to spend six months in South Africa because it would be too far from his doctors. The couple has been spending much of their time in Canada, but Blesch’s Medicare doesn’t cover him in that country and he’s forced to return twice to the United States for care.

“Tim, heartbroken, could not accompany Edwin to his doctors (as he always does), fearful he would be denied entry to the United States during those six-month periods,” the lawsuit states.

Immigration Equality’s lawsuit is one of about a dozen pending lawsuits challenging DOMA. This week, the First Circuit Court of Appeals was set to hear oral arguments for two cases, marking the first time an appellate court has held a hearing on DOMA.

Executive director of Immigration Equality Rachel Tiven (Blade file photo by Michael Key)

Rachel Tiven, executive director of Immigration Equality, said her lawsuit was a necessary addition to existing cases because no pending lawsuit focuses on bi-national couples.

“We worked closely in partnership with GLAD, Lambda, ACLU to determine what would make sense to protect the rights of people for whom their DOMA problem is immigration benefits, and really came to the conclusion that the time is now,” Tiven said.

Lavi Soloway, co-founder of Stop the Deportations and an immigration attorney at Masliah & Soloway, said the lawsuit will help draw attention to the plight of gay bi-national couples. He has no involvement with the lawsuit.

Still, Soloway expressed skepticism that the case would have any impact on the law because he thinks other DOMA lawsuits will reach the Supreme Court sooner.

“Certainly, bi-national couples experience Section 3 of DOMA in a way that is hard to compare to any other situation, but the reality is that this lawsuit will move through the federal judicial system for years and is unlikely to produce any immediate change,” Soloway said.

But the Immigration Equality case isn’t the first lawsuit to challenge DOMA on the basis that it’s unfair to bi-national same-sex couples. In September, a federal judge threw out a case filed by Handi Lui, an Indonesian native who was denied a marriage-based green card application.

Tiven said her organization’s lawsuit will be more successful than other immigration-related DOMA cases because it was filed in a different circuit that is governed by different case law.

“We filed in the Second Circuit because we believe that a DOMA challenge based on immigration need will succeed here and because all of the states in the second circuit are marriage equality states,” Tiven said.

The Obama administration announced last year it would no longer defend DOMA in court, and since then — following a vote of the Bipartisan Legal Advisory Group — the House general counsel has taken up defense of the law.

In the Immigration Equality case, the Justice Department is similarly expected to decline to defend DOMA, and the attorneys of House Speaker John Boehner are expected to come to the defense of the anti-gay law.

Immigration Equality has called on the Obama administration to hold the marriage-based green cards of bi-national same-sex couples in abeyance — so they cannot be denied — until Congress or the courts act to repeal DOMA. Each time the organization has made the call, the administration has said it would continue to enforce DOMA as long as it remains on the books.

One of the couples involved in the lawsuit, Ryan and Truman, have asked the administration to make this change. In November, Sen. Richard Blumenthal (D-Conn.) wrote the Department of Homeland Security to ask officials to place on hold the couple’s green card application.

According to The Advocate, LGBT groups met with White House officials to January to discuss the possibility of putting the green cards in abeyance. But administration officials reportedly told LGBT rights supporters such action wouldn’t be taken.Case

Tiven said Immigration Equality filed the lawsuit because the administration’s decision left the organization no other option.

“We’ve been really working … for a year now to ask them to hold the green card applications for couples who are affected by DOMA and, after a lot of back and forth, they ultimately said ‘no,’” Tiven said. “So we really were left with no choice but to sue.”

Soloway said the administration has no reason not to take action to place the green cards in abeyance to protect bi-national same-sex couples.

“It is not a legally required position, it is a political choice,” Soloway said. “If they want to protect all LGBT families, then they could craft policy that would secure married bi-national couples in the interim period.”

While the administration hasn’t taken action to hold the marriage-based green card applications in abeyance, it has said it would include bi-national same-sex couples as part of an effort to take low priority cases out of the deportation pipeline by granting them prosecutorial discretion.

The criteria for being taken out of the deportation pipeline include a person’s ties and contributions to the community and family relationships, and administration officials have said these criteria are inclusive of LGBT families and same-sex couples.

But Soloway said these protections for bi-national same-sex couples are insufficient because, beyond speaking to media, the administration has never explicitly said this change covers LGBT families.

“We should not be fooled,” Soloway said. “There’s no expressed protection being provided under the prosecutorial discretion policy to lesbian and gay bi-national couples. It has worked in certain cases, but it’s far from consistent and it depends on individual ICE prosecutors understanding how to apply the guidelines.”

Moreover, Tiven said none of the couples in the lawsuit have received notification they would be taken out of the deportation pipeline as a result of this initiative.

According to Immigration Equality, Blesch and Smulian have one year of deferred action for a deportation hearing, while Herbert and Takako are applying for such action. Ryan and Truman as well as Morgan and del Mar Verdugo are able to stay together in the United States because of work visas.

“It doesn’t let them make any advance plans,” Tiven said. “In the [Morgan and del Mar Verdugo's] case, they talked about having children, but have postponed that because they just don’t know what could happen.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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