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Same-Sex Permanent Residence Rights And A New Twist To Deportation Defense Law

– Posted in: Family Immigration Blog

I enjoy cutting-edge cases.

As a San Diego immigration attorney, I’ve learned a lawyer has to be willing to go out on the edge.  Where no lawyer has walked before.

Often the only possibility for victory in immigration cases requires going into uncharted waters.

It means bucking the system.  It means challenging legal rules and regulations in a way that opens new paths for those who follow.

That’s the legal and political challenge for same-sex marriages.

And that’s why this week my hat is off to Attorney Lavi Soloway.

Are Immigrants In Same-Sex Marriages Excluded From Immigration Benefits?

On Tuesday, Soloway went to a deportation hearing in New York to halt removal proceedings against his client, Monica Alcota.

Alcota, now 35, arrived in the United States from Argentina on a tourist visa more than 10 years ago.  In 2010, she married a U.S. citizen.

At first glance, her case seems straight forward.

If a U.S. citizen marries an undocumented immigrant, who entered lawfully, the citizen is allowed to immigrate the spouse as an immediate relative.  This means, with the payment of a $1,000 fine, the government will allow the immigrant spouse to adjust to lawful permanent resident status (as long as all other requirements are met.)

But on closer review, the case presents a unique immigration situation: same-sex permanent rights for gay and lesbian couples.

Alcota is involved in a non-traditional, same-sex marriage to Cristina Ojeda.  Alcota and Ojeda were married in Connecticut, where courts have upheld the legal right of gay and lesbian couples to marry.

For immigration courts, this is a case of first impression.  In short, are same-sex marriages valid for purposes of granting immigration benefits to a U.S. citizen’s spouse born in another country?

It’s not just an immigration court issue.  On a nationwide basis, state and federal courts struggle with the legality of same-sex marriages.

And as happens often with immigration issues, the outcome of the Alcota deportation matter will be decided, at least in part, by political decisions, not legal principles.

How Politics Will Affect The Alcota Same-Sex Permanent Residence Case

Legally, whether Alcota is entitled to permanent residence through a family-based visa petition seems an easy question.

Politically, the issue is far more clouded.

Under the Federal Defense of Marriage Act (DOMA), marriage is currently defined as a legal union between one man and one woman for purposes of all federal laws.  It also provides that states are not required to recognize a marriage from another state if it is between persons of the same sex.

However, Connecticut has recognized the Alcota-Ojeda marriage as legally valid.

Since granting marriage licenses are largely the purview of state governments, is the immigration court bound to accept the Connecticut marriage as binding?

Or since the Connecticut law runs afoul of DOMA, are immigraton courts tied to the federal definition of marriage?

Are immigration agencies bound to recognize same-sex permanent residence applications?

The case places government attorneys not only in the middle of a controversial debate over gay and lesbian marriages – but also in a conflicted legal position regarding contradictory departmental loyalties.

It began last month when President Obama instructed the Department of Justice to enforce, but not defend, DOMA.  How are the DOJ attorneys supposed to present the government’s position at immigration court?

If they do not defend DOMA, does this mean they are not supposed to contest the validity of same-sex marriages for immigration purposes?

In my view as a deportation defense lawyer, it is likely that whether government attorneys label their position as “enforcing” or “defending” DOMA, they will assert the Alcota-Ojeda marriage is not valid for conferring immigration benefits.

This seems, after all, the preferred action for Obama, who is reluctant to engage in immigration disputes.

Assuming there are no other avenues of relief available to Alcota, the immigration judge will likely order her removed back to Argentina.

If this takes place, Alcota’s immigration lawyer will probably file an immigration appeal contesting the deportation order.

On appeal, foreign marriages, which do not comply with our strict marriage procedures, may become part of the immigration debate over same-sex marriages.

The next hearing is scheduled in December.  Like other immigration observers, I’ll pay close attention to how the government handles this case.

Unless DOMA is stricken, there seems no easy path for any of the parties.

The Seamless Web Of Immigration Law

When I was a student in law school, I was warned the law was a seamless web.  I thought my professor was exagerrating.

I no longer have such doubts.

Alcota’s case demonstrates, once again, even immigration law is a tapestry – full of varied legal concepts and human relations stitched together to govern who gets to live and work here legally.

By Carlos Batara Immigration Law, Policy, And Politics