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Judge halts deportation proceedings for gay Venezuelan national

Court cites Holder’s order to vacate as reason to adjourn

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A U.S. immigration judge on Friday halted deportation proceedings for a Venezuelan national facing expulsion from the country because of the Defense of Marriage Act in part because of a recently issued order from the Justice Department interceding in a related case.

Judge Alberto Riefkohl granted an adjournment until Dec. 16 in the case Henry Velandia, a salsa dancer who’s in a legal same-sex marriage and faces deportation to Venezuela. The judge, who heard the case in a Newark, N.J., court, could have ordered deportation on the date of the hearing and barred Velandia from returning to the United States for 10 years.

Josh Vandiver, Velandia’s spouse, had filed an I-130 marriage-based green card petition for Velandia, which was denied in January on the sole basis of DOMA. After President Obama announced in February that he would no longer defend DOMA in court because he determined the law was unconstitutional, Vandiver re-filed the petition, which remains pending with U.S. Citizenship & Immigration Services.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York who’s handling Velandia’s case, said the judge made his decision on the basis that Vandiver’s marriage-based green card petition is still pending and because of a recent decision by U.S. Attorney General Eric Holder in a related immigration case.

On Thursday, Holder issued an order to vacate for another bi-national same-sex couple in New Jersey seeking recognition of their civil union for immigration purposes, halting the potential deportation and the separation of this couple.

“Today we have won an important victory by stopping the deportation of Henry Velandia,” Soloway said. “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 bi-national 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 bi-national same-sex couples may be on the horizon.”

According to Soloway. Immigration & Customs Enforcement Assistant Chief Counsel David Cheng, who’s prosecuting the case on behalf of the Department of Homeland Security, agreed to the adjournment.

“The attorney felt that it was appropriate to proceed with caution and give this process a chance to play out, and, if that’s the case, then they changed their position and they agree with the judge,” Soloway said. “So they were very cooperative.”

In a statement, Vandiver said the judge “made the right decision” by postponing these proceedings and stopping, at least temporarily, Velandia’s deportation.

“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,” Vandiver said. “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.”

Robin McGehee, director of GetEQUAL, which rallied at the Newark court in support of Velandia along with other LGBT groups, said Velandia and Vandiver’s friends are “all certainly breathing a sigh of relief” in the wake of the decision and noted the couple has “a bit of time to re-group, re-connect, and re-strategize about how to move forward.”

“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 bi-national couples who are facing similar scenarios across the country,” McGehee said.

Soloway noted the judge’s action is only temporary reprieve for Velandia and called on the Obama administration to take action to prevent the deportations of foreign nationals in same-sex marriages until a final decision is made on the constitutionality of DOMA.

“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 bi-national couples are protected until the fate of DOMA is determined by Congress or the Supreme Court,” Soloway said.

Questions still remain about whether Velandia will be able to remain in the United States following the hearing in December. Soloway said the implications of the attorney general’s order and possible action from the Obama administration are still unclear.

“We simply don’t know what the scenario will be come December,” Soloway said. “We are hopeful that what we are seeing is evidence that the administration understands the crisis that bi-national couples are facing and that they’re looking for ways to develop remedies and implement them.”

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State Department

State Department releases annual human rights report

Antony Blinken reiterates criticism of Uganda’s Anti-Homosexuality Act

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(Photo courtesy of the Library of Congress)

Secretary of State Antony Blinken on Monday once again reiterated his criticism of Uganda’s Anti-Homosexuality Act upon release of the State Department’s annual human rights report.

“This year’s report also captures human rights abuses against members of vulnerable communities,” he told reporters. “In Afghanistan, the Taliban have limited work opportunities for women, shuttered institutions found educating girls, and increasing floggings for women and men accused of, quote, ‘immoral behavior,’ end quote. Uganda passed a draconian and discriminatory Anti-Homosexuality Act, threatening LGBTQI+ individuals with life imprisonment, even death, simply for being with the person they loved.”

Ugandan President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Uganda’s Constitutional Court earlier this month refused to “nullify the Anti-Homosexuality Act in its totality.” More than a dozen Ugandan LGBTQ activists have appealed the ruling.

Clare Byarugaba of Chapter Four Uganda, a Ugandan LGBTQ rights group, on Monday met with National Security Council Chief-of-Staff Curtis Ried. Jay Gilliam, the senior LGBTQI+ coordinator for the U.S. Agency for International Development, in February traveled to Uganda and met with LGBTQ activists who discussed the Anti-Homosexuality Act’s impact. 

“LGBTQI+ activists reported police arrested numerous individuals on the basis of their sexual orientation or gender identity and subjected many to forced anal exams, a medically discredited practice with no evidentiary value that was considered a form of cruel, inhuman, and degrading treatment and could amount to torture,” reads the human rights report.

The report, among other things, also notes Ugandan human rights activists “reported numerous instances of state and non-state actor violence and harassment against LGBTQI+ persons and noted authorities did not adequately investigate the cases.”

Report highlights anti-LGBTQ crackdowns in Ghana, Hungary, Russia

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The country’s president, Nana Akufo-Addo, has said he will not sign the measure until the Ghanaian Supreme Court rules on whether it is constitutional or not.

The human rights report notes “laws criminalizing consensual same-sex sexual conduct between adults” and “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons” are among the “significant human rights issues” in Ghana. 

The report documents Hungarian Prime Minister Viktor Orbán and members of his right-wing Fidesz party’s continued rhetoric against “gender ideology.” It also notes Russia’s ongoing crackdown against LGBTQ people that includes reports of “state actors committed violence against LGBTQI+ individuals based on their sexual orientation or gender identity, particularly in Chechnya.”

The report specifically notes Russian President Vladimir Putin on July 24 signed a law that bans “legal gender recognition, medical interventions aimed at changing the sex of a person, and gender-affirming care.” It also points out Papua New Guinea is among the countries in which consensual same-sex sexual relations remain criminalized.

The Hungarian Parliament on April 4, 2024. Prime Minister Viktor Orbán and his right-wing Fidesz party in 2023 continued their anti-LGBTQ crackdown. (Washington Blade photo by Michael K. Lavers)

The Cook Islands and Mauritius in decriminalized homosexuality in 2023.

The report notes the Namibia Supreme Court last May ruled the country must recognize same-sex marriages legally performed outside the country. The report also highlights the Indian Supreme Court’s ruling against marriage equality that it issued last October. (It later announced it would consider an appeal of the decision.)

Congress requires the State Department to release a human rights report each year. 

The Biden-Harris administration in 2021 released a memorandum that committed the U.S. to promoting LGBTQ+ and intersex rights abroad.

The full report can be read here.

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Same-sex couples vulnerable to adverse effects of climate change

Williams Institute report based on Census, federal agencies

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Beach erosion in Fire Island Pines, N.Y. (Photo courtesy of Savannah Farrell / Actum)

A new report by the Williams Institute at the UCLA School of Law finds that same-sex couples are at greater risk of experiencing the adverse effects of climate change compared to different-sex couples.

LGBTQ people in same-sex couple households disproportionately live in coastal areas and cities and areas with poorer infrastructure and less access to resources, making them more vulnerable to climate hazards.

Using U.S. Census data and climate risk assessment data from NASA and the Federal Emergency Management Agency, researchers conducted a geographic analysis to assess the climate risk impacting same-sex couples. NASA’s risk assessment focuses on changes to meteorological patterns, infrastructure and built environment, and the presence of at-risk populations. FEMA’s assessment focuses on changes in the occurrence of severe weather events, accounting for at-risk populations, the availability of services, and access to resources.

Results show counties with a higher proportion of same-sex couples are, on average, at increased risk from environmental, infrastructure, and social vulnerabilities due to climate change.

“Given the disparate impact of climate change on LGBTQ populations, climate change policies, including disaster preparedness, response, and recovery plans, must address the specific needs and vulnerabilities facing LGBTQ people,” said study co-author Ari Shaw, senior fellow and director of international programs at the Williams Institute. “Policies should focus on mitigating discriminatory housing and urban development practices, making shelters safe spaces for LGBT people, and ensuring that relief aid reaches displaced LGBTQ individuals and families.”

“Factors underlying the geographic vulnerability are crucial to understanding why same-sex couples are threatened by climate change and whether the findings in our study apply to the broader LGBTQ population,” said study co-author Lindsay Mahowald, research data analyst at the Williams Institute. “More research is needed to examine how disparities in housing, employment, and health care among LGBT people compound the geographic vulnerabilities to climate change.”

Read the report

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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