A bi-national couple in California and their son have filed a lawsuit against the Defense of Marriage Act in court in attempt to avoid separation or relocation to the Philippines.
The lawsuit, Aranas v. Napolitano, was filed Thursday by the Center for Human Rights on Constitutional Law on behalf of a Filipino foreign national along with her 25-year-old son and her U.S. citizen spouse. The class-action suit is pending before the U.S. District Court for the Central District of California.
Jane DeLeon, an immigrant from the Philippines who came to the United States in 1989, has lived with her U.S. citizen partner in California, Irma Rodriguez, for twenty years. They were married in 2008 prior to passage of Proposition 8. DeLeon had her son, Martin Aranas, in a previous marriage with a man and he came to the United States when he was nine years old. His legal status is dependent on his mother’s.
DeLeon and Aranas had temporary lawful status for several years while their visa applications were being processed. DeLeon was approved for an immigrant visa based on her employment, but because she entered the country using the name of her then common-law husband, she needed a I-601 waiver from U.S. Citizenship and Immigration Service to retain legal status.
According to the lawsuit, DeLeon tried many avenues to obtain the waiver, but was denied in every attempt. Ultimately, DeLeon made the case the relocation to the Philippines would cause undue hardship for the couple. The complaint says Rodriguez suffers from hypertension and the medication she takes, Ultram, isn’t available in country. The lawsuit also cites the State Department annual human rights report and its assertion that the Philippines can be a hostile place for LGBT people.
Nonetheless, on Nov. 9, the federal government denied the application, citing Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. According to a news statement, DeLeon was advised that her temporary lawful status was revoked and if she didn’t depart the country within 12 months she would be barred from reentry for a minimum of ten years.
In the statement, DeLeon said she and her family “pray that the administration will change its mind” and grant her relief so that she’s able to stay within the country.
“Irma and I have committed to each other for the rest of our lives,” DeLeon said. “We now face being forced to move to the Philippines or breaking up our family only because we are legally married women. We would face persecution in the Philippines because we are a same sex couple, not to mention dire poverty, separation from our extended families who live here, and lack of access to medical treatment Irma needs.”
Aranas also said he wants to see the administration change its decision so both he and his mother can remain together in the United States.
“I have attended school here and continue to attend school while working part-time,” Aranas said. “My legalization depends on my mother’s case. After many years of having temporary legal status, I now face being in ‘illegal’ status only because my mother is in a same sex marriage. I hope and pray that President Obama will allow me and the hundreds or thousands of children of gay married couples to continue living here with some legal protection until the courts decide whether denying our parents immigration benefits is constitutional.”
Plaintiffs contend DOMA is unconstitutional because it violates the due process and equal protection guarantees of the Fifth Amendment of the U.S. Constitution. The prayer for relief calls for the court to certify a class of similarly situated same-sex married couples and to rule that applying DOMA in this matter is unlawful. Additionally, the lawsuit asks for a temporary injunction preventing the federal government from removing or detaining plaintiffs or denying them access to employment.
Peter Schey, an attorney with the Center for Human Rights and Constitutional Law, said he hopes the lawsuit prompts the administration to change its policy and offer across the board relief for DeLeon’s family and those who are similarly situated.
“To discriminate against this population by requiring that they live underground, work illegally, or worse be deported, while the courts address the constitutionality of DOMA is unconscionable,” Schey said. “If President Obama understood that undocumented youth are entitled to temporary protection from deportation while Congress grabbles with their status, he should understand that same sex married couples are entitled to temporary protection from deportation while the courts decide if they agree with his administration that DOMA is unconstitutional.”
Lavi Soloway, an immigration attorney and founder of the Stop the Deportations, said the case is the sixth to be filed in federal court in which a married bi-national couple has challenged DOMA. Soloway, who isn’t involved in the litigation, said the lawsuit takes its place at the back of line behind nearly 20 other cases challenging DOMA and predicted that the two cases on appeal to the Supreme Court would be resolved by Summer 2013 — much sooner than the resolution of the latest case.
Still, Soloway said the filing of the lawsuit “highlights the urgent need” for the Obama administration to act on its own accord and put marriage-based green card application by gay families on hold in addition to instituting a moratorium on DOMA-based deportations.
“The Obama administration has refused to act to protect LGBT families impacted by DOMA in the immigration context, despite strenuous efforts by members of both the House and Senate to urge implementation of these remedies,” Soloway said. “Thousands of gay and lesbian Americans struggle every day with the crisis of expiring visas, separation, exile, and deportation caused solely by DOMA. This can end now if the Obama administration uses the power of the executive branch to implement remedies to protect our families until DOMA is gone.”
The Department of Homeland Security has repeatedly said it would continue to enforce to DOMA in the face of calls to hold marriage-based green cards for same-sex couples in abeyance. The administration has said it would examine potential deportations on a case-by-case basis and would consider low priority individuals with ties to the community, including LGBT families.