Karen Ocamb

Victory for Binational Couple Henry Velandia & Josh Vandiver

Filed By Karen Ocamb | July 01, 2011 2:00 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: binational couples, DOMA, Henry Velandia, immigration guidelines, Josh Vandiver, Lavi Soloway

Federal immigration officials have cancelled the deportation of Henry Velandia of Venezuela, who is legally married to Josh Vandiver, an American. Josh-and-Henry-binational-couple-300x200.jpgAccording to their lawyer, Lavi Soloway, the action comes after more flexible immigrations guidelines were put into effect for immigrants with no serious criminal records.

Henry Velandia of Venezuela (rt), who is legally married to Josh Vandiver (Photo courtesy StoptheDeportions)

"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," Soloway told the New York Times.

Velandia, 27, a professional salsa dancer and teacher who came to America in 2002, legally married Vandiver, 30, a graduate student at Princeton University, last year in Connecticut. But under the Defense of Marriage Act (DOMA), Vandiver could not petition for legal residency for Velandia - a privilege automatically afforded heterosexual couples. The binational couple fought to stay together and got a break when Attorney General Eric Holder announced that the Obama administration considers DOMA unconstitutional. That prompted an immigration judge in Newark to suspend Velandia's deportation last month while Holder and the courts work out new rules.

Soloway pressed to close the deportation hearing and received word from a top federal official on June 9 that Velandia's deportation "is not an enforcement priority at this time." The immigration judge closed the case on June 13 and Soloway got the final order on Wednesday, according to the Times.

"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 Velandia noted that while the decision in his case was "a big step forward" - the larger issue of DOMA remains. "The fight isn't over," he said.

Indeed, there continues to be confusion for non-lawyers over Holder's announcement that DOMA would no longer be defended in federal court - but then the Justice Department appeals the decision by the Bankruptcy Court in Los Angeles in In re Balas and Morales, which held that Section 3 of DoMA was unconstitutional. That case has been considered another nail in the DOMA coffin after the court found that a gay couple's marriage should be recognized after they filed a joint petition for bankruptcy.

But, Georgetown Professor Nan Hunter points out in her blog, the appeal is not a surprise:

In its filing, the Department noted that, although the Attorney General has opined that this provision of the law is indeed unconstitutional, the law will continue to be enforced until it is repealed or found unconstitutional by an appellate court. However, according to a Department spokesman, the appeal in effect will serve only to allow the attorneys hired by [House Republican] Speaker Boehner to defend DoMA to intervene so that they can make the substantive arguments that it is constitutional.

No surprises here - this is exactly the procedure that DoJ announced it would follow, i.e. appealing decisions striking down DoMA that it agrees with, so that the appellate court would have jurisdiction over the case, thereby insuring that Congress would have the opportunity to defend the law. The logic appears twisted, but then, what isn't twisted about DoMA?

Lavi-Soloway-hs--215x300.jpgThe Bay Area Reporter reports that the couple's lawyer has asked the 9th Circuit Court of Appeals to intervene immediately in the case.

Here is Lavi Soloway's reaction to the cancelation of Velandia's deportation - posted on his website StoptheDeportations.com:

"This historic decision by the government to close deportation proceedings against Henry Velandia allows him to stay in the United States with his American husband, Josh Vandiver, without the fear that they will be torn apart. This unprecedented move will save Josh and Henry's marriage and end the threat of deportation, while Josh continues to fight for his right to sponsor Henry for a green card based on their marriage and the fate of the Defense of Marriage Act (DOMA) is resolved by Congress or the Supreme Court.

"For the first time the Department of Homeland Security has demonstrated that when it comes to the spouses of lesbian and gay Americans the government does indeed have the discretion necessary to evaluate the merits of each case and, where appropriate, to decline to pursue deportation. Importantly, it is proof that we can bring about positive change by telling our stories and educating the general public, elected officials and executive branch agencies about the cruel impact of DOMA on the daily lives of married binational lesbian and gay couples. This decision will lay the foundation for administrative closure of other other deportation cases involving gay and lesbian couples. Stop The Deportations - DOMA Project campaign will continue to fight for every binational couple facing deportation. Even so, we will also continue to urge the Obama administration to institute an immediate moratorium on all deportations of spouses of lesbian and gay Americans. In the end, we must defeat DOMA so that all married couples are equal under federal law."

(Photo of Lavi Soloway by Karen Ocamb. Crossposted at LGBT POV.)

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