Judge Gives Immigrant in Same-Sex Marriage a Reprieve From Deportation
Published: May 6, 2011 - New York Times
An immigration
judge in Newark on Friday suspended the deportation of a Venezuelan man who is
married to an American man, responding to an unusual signal this week from the
Obama administration that it is exploring legal avenues for recognizing same-sex
marriages in immigration cases.
The Venezuelan, Henry Velandia, had been awaiting the hearing with dread,
since immigration authorities had said it was the last step before his
deportation. Mr. Velandia, a dancer, was legally married last year in
Connecticut to Josh Vandiver, a graduate student at Princeton. Mr. Velandia was
denied legal residency as Mr. Vandiverfs spouse because under a federal law, the
Defense of Marriage Act, immigration authorities do not recognize same-sex
marriage.
On Thursday, Attorney General Eric
H. Holder Jr. intervened in a different immigration case involving a
same-sex couple, suspending the
deportation of a man from Ireland and sending his case back to the
immigration appeals court, asking it to consider several possible grounds on
which the Irishman might qualify for legal residency.
Citing the move by the attorney general, Judge Alberto J. Riefkohl of
immigration court in Newark postponed Mr. Velandiafs deportation until December
at the earliest. The judge said he wanted to allow time for the attorney general
and the appeals court to work out whether a gay partner might be eligible under
some circumstances for residency.
Gay rights advocates said the back-to-back developments were an important
sign that the Obama administration was working to bring consistency to its
policy on same-sex marriage. The administration determined in February that the
Defense of Marriage Act discriminates unconstitutionally against gay people.
Mr. Holder said then that the administration would no longer defend the act,
also known as DOMA, in the courts, but would continue to enforce it until the
courts reached a decision on whether it was constitutional.
Rachel B. Tiven, the executive director of Immigration Equality, a legal
group that advocates for gay immigrants, said the change of course in the two
cases had sent ga signal of opennessh from the administration.
gSomething is shifting and opening, and change is on the horizon,h Ms. Tiven
said.
Supporters of the Defense of Marriage Act, which defines marriage for the
purposes of federal law as between a man and a woman, reacted strongly to Mr.
Holderfs action.
Representative Lamar
Smith of Texas, the Republican who is chairman of the House Judiciary
Committee, said the attorney general had ginstructed an immigration court to
ignore DOMA in future rulings.h
Mr. Smith said the administration was gcoming dangerously close to giving the
impression they donft care what the law says.h
In Newark, Mr. Velandia and Mr. Vandiver were mainly relieved that they had
avoided separation. gWe know this is just a reprieve,h Mr. Vandiver said. gBut
every day we can have together is invaluable.h
Mr. Velandia, 27, is a salsa dancer who came to the United States in 2002 and
failed in his effort to gain an employment visa. He has become a poster case for
gay immigrants across the country, as he and Mr. Vandiver, 29, gathered
thousands of signatures on an online petition asking Janet
Napolitano, the secretary of homeland security, to suspend deportations for
all same-sex spouses.
Before the hearing, dozens of gay protesters demonstrated on the sidewalk in
front of the federal building in Newark where the immigration court is housed.
Judge Riefkohl noted in the hearing that Mr. Velandia and Mr. Vandiver were a
married couple, and he said he wanted to wait for the outcome of the immigration
appeals courtfs reconsideration of the case of the Irish immigrant.
gWe won the victory we were looking for,h said Lavi Soloway, the lawyer for
Mr. Velandia and Mr. Vandiver. gThe government acknowledged that Henryfs removal
was no longer a foregone conclusion.h
The Irishman, Paul Wilson Dorman, came to the United States in 1996 and
stayed beyond the term of his visa. But in a potentially important wrinkle, Mr.
Dorman joined with an American citizen in June 2009 in a civil union — not a
marriage — in New Jersey. That state does not offer same-sex marriage.
His lawyer, Nicholas J. Mundy, said the courts had denied his partnerfs
petition for a permanent resident visa for Mr. Dorman. But Mr. Holder asked the
immigration appeals court to re-examine the case to determine whether Mr. Dorman
might qualify for the visa by virtue of his civil union.
Mr. Mundy said he was optimistic about the significance for gay immigrants of
Mr. Holderfs action. gIt is an extraordinary measure,h he said, gand it sends a
clear message that the Obama administration intends to do away with DOMA in its
entirety.h
Ms. Tiven, of Immigration Equality, was more cautious. gThis is not yet the
solution that thousands of families clearly need,h she said.