Judge grants deportation reprieve for same-sex spouse of citizen

By Liz Goodwin | The Lookout
From: news.yahoo.com

In America’s often unnavigable immigration system, one course of action tends to yield reliable results: Marry a U.S. citizen, and you can stay.

But that’s not the case for gay immigrants. An American who marries a same-sex immigrant in one of the states that allow gay marriage cannot sponsor his or her spouse for a green card, due to the federal Defense of Marriage Act (DOMA).

That’s why it’s surprising that Alex Benshimol–a 47-year-old Venezuelan who over-stayed his visa and married his American spouse Doug Gentry–has just been granted a two-year deportation reprieve from immigration judge Marilyn Teeter in San Francisco. Immigration and Customs Enforcement (ICE) has 60 days to pursue the deportation or let it drop altogether. The judge has scheduled the next hearing in 2013 if ICE moves forward.

“We just want to be married like anyone else,” Gentry said outside the courtroom, according to The San Francisco Examiner. “We don’t want anything special, just to be the same, to be equal.”

According to Benshimol’s attorney, Lavi Soloway, immigration judges around the country are growing more reluctant to deport same-sex spouses of Americans–particularly after the Department of Justice announced the Obama administration would no longer defend DOMA in court in February. Since the Justice Department’s position is that DOMA is unconstitutional, immigration judges (who are themselves a part of the Justice Department) find it increasingly contradictory to deport people who would otherwise qualify for citizenship if the law did not exist.

Soloway essentially attempts to buy time for his clients, gambling that by the time a final decision is made in their cases, DOMA will have been declared unconstitutional or repealed legislatively. (Several challenges to the law are pending in the courts.)

So far, the tactic seems to be having some success. Soloway says this is the third case he’s handled in which a judge has delayed or stopped deportation altogether, and he believes the defendant’s same-sex marriage was a factor in all three decisions.

One such case involved Edwin Echegoyen and Rodrigo Martinez, a Washington, D.C., couple who married last year when gay marriage became legal in the district. Martinez came to the United States from El Salvador on a visitor’s visa eight years ago. He was issued an Order of Removal by a judge in 2007, but Echegoyen was not allowed to attempt to sponsor Martinez for a green card. Earlier this month, the same judge who issued Martinez’s order of deportation rescinded it and re-opened the case. She mentioned Martinez’s marriage to Echegoyen in her decision, Soloway says.

According to the UCLA’s Williams Institute, there are 36,000 binational same-sex couples–with one partner an immigrant and the other a U.S. citizen–in the country.

(This article has been updated since publication.)

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Posted on 2011/07/16, in Articles and tagged , , , , , , . Bookmark the permalink. Comments Off on Judge grants deportation reprieve for same-sex spouse of citizen.

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