Some Deportations Halted for Gay Immigrants (The Advocate)

Some Deportations Halted for Gay Immigrants
By Trudy Ring
Posted on Advocate.com August 20, 2011 07:05:00 PM ET

Some binational same-sex couples received good news about pending deportation orders this week, thanks partly to the Obama administration’s new policy making certain deportations low priority.

Denver immigration judge Mimi Tsankov Friday halted the deportation of Sujey Pando and scheduled a new hearing in January based on her marriage to U.S. citizen Violeta Pando, attorney Lavi Soloway reported on his Stop the Deportations blog. Sujey is an undocumented immigrant from Mexico who came to the U.S. as a minor. She married longtime partner Violeta last year in Iowa, where same-sex marriage is legally recognized. They live in Denver.

“Because [Friday's] hearing was intended to be a final decision day on Sujey's deportation, the judge's action was unusual; she spent 45 minutes methodically considering the procedural posture of the case,” wrote Soloway, who is representing Sujey Pando. “In the end, the judge set aside the intended purpose of the hearing, citing developments including the Attorney General's intervention in a similar case in May ... and noted that the issues involved in this case existed in a context that was 'fluid' and 'in a state of flux.' The judge referred to events that occurred as recent as yesterday as having an impact on how to proceed. Yesterday, the [Department of Homeland Security] Secretary [Janet] Napolitano ordered a review of all pending deportation cases for possible closure, including those involving LGBT families.”

Napolitano issued a letter to the U.S. Senate Thursday saying the status of undocumented immigrants who pose no security risk and came to the country as children should be reviewed on a case-by-case basis. “The judge was not comfortable moving forward with so much at stake,” Soloway toldThe Denver Post.

On Tuesday, an immigration judge in San Francisco closed deportation proceedings involving Raul Sinense, a Filipino national who married U.S. citizen Peter Gee in California in 2008 during the brief period that same-sex marriage was legal in that state. Sinense had lived and worked legally in the U.S. with a green card for many years, but his green card renewal was denied in 2009, and deportation proceedings began, according a press release from the American Immigration Lawyers Association.

The decision in Sinense’s case, according to the lawyers’ group, was made possible by an earlier Obama administration directive, allowing Immigration and Customs Enforcement attorneys to opt not to seek deportation of certain individuals. ICE and the judge agreed to a request by Sinense’s lawyer, Camiel Becker, to close deportation proceedings against Sinense until the constitutionality of the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages, is determined. DOMA is currently being challenged in several court cases, and legislation to repeal it is pending in Congress.

Also, Soloway told The Advocate he received notice Saturday that ICE had dropped deportation proceedings against Venezuelan Alex Benshimol, who is married to American Doug Gentry. This decision was also based on the ICE memo and came within weeks of a July hearing in which the couple requested closure of the deportation action. At that time the judge gave the government 60 days to decide whether it will agree to drop the case against Benshimol and said she would not revisit the case for two years if the government did not agree, Soloway said. “It demonstrates that a just outcome can be achieved for married lesbian and gay binational couples simply by deciding not to pursue deportation when doing so would result in a marriage being torn part by an unjust and unconstitutional law,” he said. The action was the second of its kind this year, he said.

He added, “We still need a uniform policy that will make these case by case determinations unnecessary. We are cautiously optimistic after the announcement this week by Janet Napolitano that all 300,000 pending deportation case will be reviewed for possible closure, including those impacting LGBT families. However, we do not know yet the mechanics of that process, nor how long it will take for the government working group to carry out its mission. In the meantime we must continue to fight for each couple and for an end to DOMA deportations across the board.”

The impact of new immigration policies remains to be seen for many couples, including Bradford Wells and Anthony John Makk of San Francisco. Wells, a U.S. citizen, and Makk, an Australian, married in Massachusetts seven years ago, and Makk has been here legally under a series of visas, the San Francisco Chronicle reported. His application for permanent residency and Wells’s petition to have him recognized as a legal spouse have been denied and are on appeal.

The Napolitano letter may offer the couple some hope, but not before Makk’s visa expires — it applies only to those already facing deportation. He remains a legal resident until his visa expires, and he and Wells said they hope he does not have to become undocumented in order to win the right to stay in the country.

“Anthony and I have worked tirelessly for the entire length of our relationship to make sure that he has been in legal status,” Wells told the Chronicle. “Being legal has been important to us for 19 years, and I think we should be rewarded for remaining in legal status and not be treated the same as people who have no regard for the law, because that would give people no motivation to do the right thing.” Still, he said the new policy “is a really big step in that the government is showing compassion to gay and lesbian families.”

Meanwhile, prize-winning journalist Jose Antonio Vargas, a long-out gay man who came out this year as an undocumented immigrant, discussed the implications of the new administration policies with Rachel Maddow on her show Friday.