Deportation of Partner in Same-Sex Couple Halted

By SAMANTHA HENRY
|  Saturday, May 7, 2011  |  Updated 10:06 AM EDT
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Deportation of Partner in Same-Sex Couple Halted

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A dancer from Venezuela who legally married an American man in a same-sex ceremony last year had his deportation placed on hold Friday, one day after U.S. Attorney General Eric Holder set aside an immigration ruling in a similar case.

Henry Velandia, 27, a professional salsa dancer from Caracas, wants to be allowed to remain in the U.S. as the spouse of U.S. citizen Josh Vandiver, a 29-year-old graduate student at Princeton University. The couple lives in New Jersey, but were married last year in Connecticut, where same-sex marriage is legal.

On Friday, an immigration judge in Newark adjourned Velandia's case until December, citing Holder's decision from a day earlier. In that case, Holder set aside a Board of Immigration Appeals ruling allowing the deportation to Ireland of Paul Wilson Dorman, a gay man illegally in the U.S. who celebrated a civil union in New Jersey with his male partner.

The board had based its decision in the Dorman case on the 1996 federal Defense of Marriage Act, which defines marriage as the union of a heterosexual man and a heterosexual woman. Holder asked the board to determine whether Dorman can be considered a spouse under New Jersey law, and whether he would be a spouse under immigration law were it not for the Defense of Marriage Act, according to a copy of the decision.

Earlier this year, Holder said the government would no longer defend the law in court. But the administration continues to enforce it.

There are an estimated 36,000 bi-national same-sex couples in the U.S., and immigration laws are murkier on the definition of spouse. The government had briefly allowed applications for immigrant benefits for same-sex couples, then reversed course days later after a review of the laws.

On Friday, Velandia's attorney asked for his deportation hearing to be adjourned, partly based on Holder's decision.

"It's amazing, I'm in shock," Velandia said of immigration Judge Alberto Riefkohl's granting him an adjournment. "I am thankful I can still be with my husband, and keep this fight going."

In Velandia's case, his visitor visa expired, and he was unable to obtain a green card, or permanent resident status, through an employer. Because the federal government doesn't recognize the couple's marriage, Vandiver was not able to sponsor Velandia, as a heterosexual person could sponsor a spouse.

Supporters of the Defense of Marriage Act, or DOMA, say Holder's actions send a confusing message.

"It's one more step in the stealth sabotage of DOMA," said Ed Whelan, president of the Washington D.C.-based Ethics and Public Policy Center. "This is a brazen violation of the commitment made just weeks ago to have the executive branch continue to enforce DOMA."

Whelan said if the marriage law is going to be revisited, it should be done through ordinary channels, not through executive branch nullification.

"Their goal is to invite chaos, to give the false impression that DOMA is unworkable," he said of the administration's actions.

U.S. Rep. Rush Holt, who has been urging the Obama administration to halt deportation proceedings against the same-sex spouses of U.S. citizens and wrote letters in support of Velandia and Vandiver, who live in his central New Jersey district, said he would continue to push for the repeal of DOMA.

"Their struggle underscores the ongoing injustice, discrimination, and legal uncertainty that plague same-sex couples today," Holt said in a statement. Although I hope that federal courts will soon rule the so-called Defense of Marriage Act unconstitutional, I will continue to push for its repeal so that Henry, Josh, and others like them may plan their futures with confidence and hope."

Attorney Lavi Soloway, who is representing Velandia and is the founder of an advocacy group Immigration Equality, said he was pleased with the New Jersey judge's decision, and with Holder's move.

"The attorney general's decision yesterday is an extraordinary development, it's historic, it's the first time any attorney general has intervened in an immigration case involving a bi-national same-sex couple," Soloway said. "The specific instruction he's given indicates he's interested in finding a possible solution so gay and lesbian partners of American citizens can be afforded the same rights."

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