Case Closed in CA Gay Binational Couple’s Deportation Trauma
A gay binational couple is out of the woods for now, following an immigration judge’s Aug. 22 decision to close the case that might have resulted in the deportation of Alex Benshimol, 47, to his native Venezuela.
The men live in California, but had to travel to Connecticut to marry. Although California was a state that allowed marriage parity for six months in 2008, an anti-gay ballot initiative, Proposition 8, was narrowly approved by voters in that state in November of 2008, resulting in the loss of what was, at the time, the existing right of gay and lesbian families to wed legally.
Benshimol and his American husband, Doug Gentry, 53, have been together for six years, according to a July 7 Bay Area Reporter article.
"We really don’t have a second plan," Benshimol told the Bay Area Reporter for that article. "We just want to stay together." Benshimol went on to say that he had no assets and no prospects in his native country, and that being sent back could endanger him: "It’s a very difficult situation right now for gay people" in Venezuela, Benshimol said.
The article added that the men not only owned their own home in Cathedral City, California, near Palm Springs, but also own and operate a small business.
The closure of the deportation case "mark[s] the second time in which Immigration and Customs Enforcement (ICE) has agreed to close a deportation case involving a married, same-sex couple," noted an Aug. 22 joint media release from advocacy groups Stop the Deportations and GetEQUAL.
In March, the U.S. Citizenship and Immigration Services briefly stopped automatically rejecting green card applications from foreign nationals married to same-sex American spouses. That short-lived change spurred hopes that a more permanent adjustment in immigration policies might be around the corner.
Those hopes were bolstered further when John Morton, the director of Immigration and Customs Enforcement, issued a memo in June about the "prosecutorial discretion" that immigration officials enjoy. That memo did not address specific concerns related to binational couples, but marriage parity advocates seized onto the memo nonetheless.
"This victory for Benshimol and Gentry of Cathedral City, California -- the first same-sex deportation case to close following the June 17 prosecutorial discretion guidelines issued by ICE Director John Morton -- ends their personal nightmare and signifies a hopeful future for thousands of other same-sex binational couples facing deportation," adds the release.
"After appearing before San Francisco Immigration Judge Marilyn Teeter for their deportation hearing on July 13, Judge Teeter instructed the government to respond within 60 days to a lengthy and detailed request for administrative closure from the couple’s attorney, Lavi Soloway.
"Judge Teeter scheduled the next hearing for September 2013, postponing deportation proceedings for more than two years in the event that the government did not agree to close the case. On August 11, however, Judge Teeter received and granted the government’s Motion to Administratively Close deportation proceedings against Benshimol," the release added.
"On August 18, Janet Napolitano, Secretary of Homeland Security, announced a case-by-case review of all current and future deportation cases," the release went on to recollect, calling the announcement "another milestone in the fight to repeal DOMA."
DOMA -- the Defense of Marriage Act -- is a federal law passed in 1996 that denies any form of federal recognition for gay and lesbian families, restricts federal-level marriage benefits, protections, and obligations to heterosexual couples, and allows states to ignore the civil contract of marriage if entered into by same-sex couples in other jurisdictions. Two federal courts have found DOMA to be unconstitutional. The Obama administration has stopped defending the law in federal court due to questions of its Constitutional muster.
Because of DOMA, American citizens whose committed life partners -- and sometimes, their legal spouses -- are foreign nationals are not allowed to sponsor them for residency and green cards, the way that heterosexual Americans are allowed to sponsor a life partner of the opposite sex. Family equality advocates have seen the prioritizing of deportation cases to focus on criminals as a step toward more equitable treatment for same-sex couples who otherwise might face a more imminent threat from the country’s immigration officials.
But Republican lawmakers have gone to great lengths to defend DOMA, creating a plan to hire a private attorney at taxpayer expense to argue on behalf of the anti-gay measure in federal court. GOP lawmakers have also criticized the Obama Administration, suggesting that in concentrating deportation efforts on criminals, President Obama is picking and choosing which laws to enforce.
"When DOMA was passed overwhelmingly by Congress in 1996, and signed by President Bill Clinton, it was a pre-emptive strike," an April 10 Associated Press article noted. "There were no legally married same-sex couples in the United States."
But that has changed -- to the tune of tens of thousands of gay and lesbian couples who have married in one of the six states that currently offer marriage equality, or California (where couples who married in 2008 may remain married but not remarry until and unless the current ban on marriage there is lifted), or even another country such as Canada, where marriage equality has been legal since 2005.
"What was once theoretical now has practical effects that people can see, that can’t be explained other than as discrimination," Lambda Legal’s Jon Davidson told the AP. "There are people who’ve been married six years who are increasingly getting impatient."
"We are cautiously optimistic after the announcement this week by Secretary Napolitano that all 300,000 pending deportation cases will be reviewed for possible closure, including those impacting LGBT families," attorney Soloway said.
"However, we do not yet know 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."
"Today we celebrate with Doug and Alex, and breathe a quick sigh of relief that their relationship and their future together has been spared," the head of GetEQUAL, Robin McGehee, said. "But we have so far yet to go in order to preserve the relationships of tens of thousands of same-sex, binational couples living in the U.S. and exiled abroad who continue to wait on a permanent and real solution to our country’s broken immigration system."
The media release described a scene from a rally last month in support of Benshimol and Gentry.
"On July 13, Venezuelan citizen Benshimol and U.S. citizen Gentry stood hand-in-hand outside the federal building on Montgomery Street in San Francisco," the release said. "The couple was surrounded by friends, family, advocates, and supporters who came together in protest against a DOMA deportation that would destroy their marriage.
"The chanting crowd -- representing over 17,000 petition signers from across the country -- urged the Obama Administration to take immediate action to ensure that married, binational same-sex couples enjoy full equality and access to all the rights and privileges afforded to opposite-sex, binational couples under this country’s immigration laws."
In June, an immigration judge closed a similar case against Henry Velandia, who, like Benshimol, hails from Venezuela. Velandia is married to an American man, Josh Vandiver. The two men created Stop the Deportations as a way of advocating for themselves and others in similar predicaments.
"I never intended nor wanted to be an activist," Vandiver said after the judge closed the case against his husband. "I have to do what is necessary to save our marriage and to keep the man I love in this country."
An immigration judge halted Velandia’s deportation in light of pending possible changes to immigration policy. Then, on June 9, the New York Times reported, the men’s lawyer, Lavi Soloway, "received a call from Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, an arm of the Homeland Security Department, informing him that the agency had agreed to his request to close the deportation proceedings" against Velandia. On June 13, the same immigration judge agreed to close the case against Velandia.
The men seem to have won their struggle to stay together -- for the moment, at least.
"I can start breathing now after so many months of fighting," Velandia told the Times. "I was holding my breath for fear of any moment being sent away."
But while DOMA is still in place, nothing is secure -- for Vandiver and Velandia, or for any other bi-national couple. "The fight isn’t over," Velandia added.
In March, a group of lawmakers reintroduced the Respect for Marriage Act, which would repeal DOMA and extend the same rights and protections that heterosexuals enjoy to same-sex couples.
"The 15-year-old DOMA singles out legally married gay and lesbian couples for discriminatory treatment under federal law, selectively denying them critical federal responsibilities and rights, including programs like Social Security that are intended to ensure the stability and security of American families," a March 14 press release from the offices of Reps. Nadler, Barney Frank (D-MA), Tammy Baldwin (D-WI), Jared Polis (D-CO), David Cicilline (D-RI), and John Conyers (D-MI) said.
The bill has not gained traction, but as support for GLBT Americans grows -- and especially in light of lawmakers in New York recently approving marriage equality legislation, bringing the number of marriage equality states back up to six -- it remains possible that the bill could eventually win Congressional support.
Another possibility is that the courts will eventually strike DOMA down, opening the way for gay and lesbian Americans to lay claim to equal rights before the law for themselves and for their families.