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Deportation proceedings dismissed in same-sex marriage immigration case

Cross posted at TalkAboutEquality.com
Thursday, June 30, 2011
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With marriage equality now a reality in New York, our next step is securing more state victories, while at the same time overturning the so-called Defense of Marriage Act (DOMA). As we discussed here recently, there have been several challenges to the constitutionality of DOMA, including now 14 federal court cases finding the law to be unconstitutional.

Jamie McGonnigal, EqualityPhotography.com

Josh Vandiver

Another battle which is loosening the Jenga pieces under this bigoted piece of legislation is the fight for immigration rights by bi-national couples. One such case that we’ve covered is that of Henry Valendia and Josh Vandiver, a legally married couple residing in New Jersey. Under DOMA, Valendia, a Venezuelan national, was denied legal residency.

Last month, U.S. Attorney General Eric Holder vacated a decision made by the Board of Immigration Appeals (BIA). He followed up with four questions to the board:

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to:

  1. whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law;
  2. whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act;
  3. what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and
  4. whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

While there is no news as to any answers received by Holder, some incredible news came to the Valencia-Vandiver family on Wednesday in the form of a dismissal by Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, and arm of the Homeland Security Department.

The judge granted the motion to close the case on June 13 and the couple’s lawyer, Lavi Soloway received official copy of the order yesterday. While the decision was confirmed, no further information on future similar immigration cases was given.

According to The New York Times, Valendia said: “I can start breathing now after so many months of fighting. I was holding my breath for fear of any moment being sent away.”

He continued by saying the decision was a “big step forward” but did not address the continued problem of whether federal recognition of marriage equality would become a reality. “The fight isn’t over.” Valendia said.

Evan Wolfson, Founder and President of Freedom to Marry also commented on the government’s decision to dismiss these proceedings:

“Freedom to Marry applauds the U.S. government for bringing an end to this deportation process, which threatened to cruelly separate a couple who, like so many others, fell in love, made a lifetime commitment to one another, and got married -– but because they are gay, were denied the normal family immigration protections afforded other married couples.

“While this exercise of sound government discretion is most welcome, Josh and Henry, along with so many other families, should not be vulnerable to the unfair treatment or uncertainty caused by federal marriage discrimination against same-sex couples. It is time for Congress to pass the Respect for Marriage Act, which would repeal the so-called Defense of Marriage Act and end the hardship and unfairness that burden the lives of loving and committed couples.”

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