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US Immigration Judge Suspends Deportation of Gay Spouse

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Michael Bowman

For the first time, a U.S. judge has suspended the deportation of the foreign-born same-sex spouse of an American citizen.  Last week’s action by an immigration judge in New York comes amid ongoing challenges to the constitutionality of a law banning the federal government from recognizing marriages between homosexuals.

Last year, Cristina Ojeda of Queens, New York, married her partner of three years, Argentine-born Monica Alcota, in nearby Connecticut, one of only a handful of states that allow civil marriage for gay people.  But Alcota has been living under the threat of deportation for years, having overstayed a tourist visa that expired 10 years ago.

Last week (3/22/11), Alcota stood before an immigration judge fearing deportation to Argentina.  But the judge halted deportation proceedings to give her and Ojeda time to petition for federal recognition of their marriage.

Ojeda spoke with VOA a day later, saying, "We were happy.  It gives us more hope."

Among the more common ways for non-citizens to gain legal residency in the United States is by marrying a U.S. citizen.  But that avenue is blocked for tens of thousands of bi-national gay couples.  Most states refuse to grant marriage licenses to same-sex couples, and federal law bans recognition of same-sex marriage.

Ojeda recalls the pain of seeing her spouse taken into federal custody and placed in detention for three months prior to the deportation hearing. "Oh God, it has been horrible.  I have never gone through anything this painful, having Monica being taken away from me on the bus.  I had to hug her, and they took her," she said.

Attorney Lavi Soloway represents Alcota and Ojeda. "Monica and Cristina represent the ultimate consequence of discrimination against lesbian and gay couples who, although they are legally married, are denied recognition of their marriage by the federal government for all purposes, including immigration.  Cristina is no different than any other U.S. citizen.  She is in a loving, committed relationship with her spouse," he said.

Enacted in 1996, the Defense of Marriage Act stipulates that only opposite-sex marriages are valid under federal law.   During the past year, federal courts have ruled core elements of the Act unconstitutional.  Those cases are being appealed and could ultimately be decided by the U.S. Supreme Court.

Weeks ago, the Obama administration announced it would no longer defend the Defense of Marriage Act’s constitutionality, leaving it to congressionally-appointed attorneys to argue for its retention.  Earlier this month, bills to repeal the law were introduced in both houses of Congress.

California Western Law School Professor Ari Waldman has written extensively on the legal battles surrounding the Defense of Marriage Act.  He says suspending deportation is well within an immigration judge’s power, as Judge Terry Bain did for Monica Alcota.  "That the constitutionality of DOMA is, at best, uncertain, must have suggested to Judge Bain that a law that is of dubious constitutionality should not be the basis for splitting up a committed couple," he said.

VOA contacted several pro-DOMA advocacy groups.  None were willing to comment on the Alcota-Ojeda case, but all are steadfast in their conviction the institution of marriage should be reserved for heterosexuals, and that allowing gays to marry will weaken the institution and corrode the family unit, what they call the building block of civilization.

Attorney Lavi Soloway sees the issue differently. "It really is a question of discrimination.  And I have not yet heard a cogent argument for justifying discrimination against couples like Cristina and Monica.  The United States has a long history of battling to perfect the ideal that all people have equality under the law.  And what Monica and Cristina achieved is one small incremental step towards further perfecting that ideal," he said.

Law Professor Waldman says Judge Bain’s decision sets no binding precedent for other immigration cases involving bi-national married gay couples.  But he expects other judges will take note of the Alcota-Ojeda case and concur that similar deportations should be suspended until the Defense of Marriage Act’s constitutionality is definitively determined, or until the law is repealed, as President Barack Obama has advocated.

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