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发帖数: 4174 | 1 http://www.huffingtonpost.com/jeffrey-campagna/obamas-doma-turn
Immigration advocates are seizing upon President Obama's decision not the
defend the constitutionality of the Defense of Marriage Act and his
conclusion that all laws that discriminate based on sexual orientation
should be presumed unconstitutional, opening up a new front in the twenty-
year battle for immigration equality for lesbian, gay, bisexual, and
transgender people.
In three cases involving married, same-sex, binational couples facing
deportation proceedings in New York, New Jersey and California, attorney
Lavi Soloway will argue that the proceedings should be halted because the
only thing standing between each couple and a green card is the Defense Of
Marriage Act, which he will argue should not be given effect in light of
Wednesday's DOJ announcement. Says Soloway, "The issue is urgent as
deportation carries with it a 10-year ban on returning."
The New Jersey case has advanced to the Board of Immigration Appeals (BIA),
a fifteen-judge panel that serves as the highest administrative body for
interpreting immigration laws. The petitioner's notice to appeal states, "
Because the Attorney General has declared invalid the basis upon which the
Service denied the Petitioner/Appellant's Petition, there is no longer any
constitutional basis to deny the Petition where, as here, the Petition is
grounded in a marriage that is valid under state law."
Because the BIA is part of the Department of Justice and acts on behalf of
the Attorney General, Soloway says this case and others like it will give
the DOJ the opportunity to declare a broad policy that would put all
deportation proceedings involving legally married same-sex couples in
abeyance:
Although the administration will continue to enforce DOMA in its entirety as
long it remains on the books, Wednesday's announcement by the Attorney
General that it will no longer defend Section 3 of DOMA in court creates an
important opportunity for policy makers within executive branch agencies
such as the Citizenship and Immigration Services, Immigration and Customs
Enforcement, and Executive Office of Immigration Review to develop
innovative strategies to ensure that DOMA does not tear apart any married
gay or lesbian binational couples while Congress works to repeal the law and
the federal appeals courts continue to decide its ultimate fate.
The executive branch has substantial discretion to hold deportation
proceedings in abeyance. In 2009 the Department of Homeland Security did so
to stop the deportations of widows and widowers of United States citizens
who had been married less than two years. In 2010, the Obama administration
decided not to deport so-called "Dream Act elligible" students who came to
the United States without papers when they were children. Soloway believes
the President's newly articulated position on DOMA could weigh heavily in
the exercise of discretion in cases involving binational same-sex married
couples.
LGBT legal experts agree. Lambda Legal's Jon Davidson wrote in The Advocate
this week:
To have the nation's president and highest law enforcement agency conclude
that discrimination based on sexual orientation should be approached as
being of dubious validity -- like laws that discriminate based on race,
national origin, sex, religion, alienage, or illegitimacy -- will send out
ripples, if not waves, touching all laws that continue to oppress lesbians,
gay men, and bisexuals, and will influence many in our nation to rethink
whether those laws should be maintained.
These cases mark the first time immigration will be among the list of
federal marriage benefits same sex couples are demanding through litigation
premised on the unconstitutionality of DOMA. The cases that provoked the DOJ
to issue its statement involve plaintiffs who have been denied tax, social
security, pension, Family and Medical Leave Act, and employment-related
benefits.
Last October Soloway and his colleague Noemi Masliah, partners in the
immigration firm Masliah & Soloway, started Stop The Deportations: The DOMA
Project "to raise awareness of the cruel impact of the DEFENSE OF MARRIAGE
ACT on married gay and lesbian binational couples and bring an end to that
discrimination." The campaign invites same-sex bi-national couples to submit
testimonials, videos, and photographs to help raise awareness of the impact
of DOMA on their lives.
To date, LGBT advocates for immigration equality have dedicated the bulk of
their efforts toward passing the Uniting American Families Act (UAFA), which
would enable same-sex "permanent partners" of United States Citizens to
become permanent residents. Last year advocates for the bill achieved a
significant victory when Senator Charles Schumer, lead sponsor of
Comprehensive Immigration Reform, announced that key provisions of UAFA
would be included as part of the larger immigration bill. However, with the
election of a Republican majority in the House of Representatives last
November, prospects for the passing bill dimmed significantly.
Soloway, who in 1993 cofounded the organization Immigration Equality with
Noemi Masliah and Suzanne Goldberg, is quick to point out that this new
strategy is not meant to replace any other saying the movement for LGBT
equality must continue to move ahead on all fronts, including legislation
and litigation. However, he adds, "The sole obstacle remaining to resolving
the status of same-sex binational couples is DOMA. Resolve that, and game
over, we're done." | X*******H
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