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Friday, 1 July 2011

'Breakthrough' as US cancels deportation of half of same-sex married couple

Dozens rally  6 May outside of the Newark, NJ Federal Court House before Henry Velandia's deportation hearing. Two hours later the judge ordered an adjournment on the case www.allout.org/tornapart
Source: New York Times

By Kirk Semple

In a decision that could have far-reaching effects on immigration cases involving same-sex couples, federal officials have canceled the deportation of a Venezuelan man in New Jersey who is married to an American man, the couple’s lawyer said Wednesday.

The announcement comes as immigration officials put into effect new, more flexible guidelines governing the deferral and cancellation of deportations, particularly for immigrants with no serious criminal records.

Immigration lawyers and gay rights advocates said the decision represented a significant shift in policy and could open the door to the cancellation of deportations for other immigrants in same-sex marriages.
“This action shows that the government has not only the power but the inclination to do the right thing when it comes to protecting certain vulnerable populations from deportation,” said the couple’s lawyer, Lavi Soloway.
The case has been closely watched across the country by lawyers and advocates who viewed it as a test of the federal government’s position on the Defense of Marriage Act, a federal law that bars the federal government from recognizing same-sex marriages.

In February, Attorney General Eric H. Holder Jr. announced that the administration viewed the act as unconstitutional and would not defend it in the courts. Gay rights advocates asked the administration to postpone all deportations for same-sex married couples until the courts decided whether the marriage act was constitutional, but the administration said it would continue to enforce the law.

The Venezuelan man, Henry Velandia, 27, is a salsa dancer who immigrated in 2002 and was legally married last year in Connecticut to Josh Vandiver, 30, a graduate student at Princeton University. But Mr. Velandia was denied legal residency as Mr. Vandiver’s spouse because of the Defense of Marriage Act. Under immigration law, an American citizen can petition for legal residency for a spouse, as long as the spouse is not the same sex.

Last month, an immigration judge in Newark suspended Mr. Velandia’s deportation, saying he wanted to allow time for the attorney general and the courts to work out whether, under some circumstances, a gay partner might be eligible for residency.

On June 9, Mr. 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. According to Mr. Soloway, Ms. Minichiello said pursuing Mr. Velandia’s deportation “is not an enforcement priority at this time.”

Immigration agency officials confirmed Mr. Soloway’s account of the conversation but would not comment further.

The judge granted the motion to close the case on June 13, and Mr. Soloway received an official copy of the order on Wednesday.

The decision to cancel the deportation came as federal immigration officials were thoroughly reviewing their deportation policies.
“I can start breathing now after so many months of fighting,” said Mr. Velandia, 27. “I was holding my breath for fear of any moment being sent away.”
But he pointed out that while the decision was “a big step forward,” it still did not address the underlying issue of whether same-sex marriages should be recognized by the federal government.
“The fight isn’t over,” Mr. Velandia said.
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