The U.S. government has decided to drop the deportation case against Venezuelan Henry Velandia, who lives in New Jersey with his spouse, U.S. citizen Josh Vandiver. Immigration laws allowing heterosexual U.S. citizens to sponsor their spouses for legal U.S. residency are not extended to those in same-sex marriages.AP
In what advocates for gay rights hope is an indication of a change in policy regarding immigrants in same-sex marriages, immigration officials have decided not to pursue the deportation of a Venezuelan man who is married to a U.S. citizen.
Henry Velandia, a 27-year-old professional salsa dancer from Caracas, asked to remain in the United States as the spouse of U.S. citizen Josh Vandiver, a 30-year-old graduate student at Princeton University. They were legally wed in Connecticut but live in New Jersey, where same-sex marriage is not legal.
But federal law recognizes only marriages between a man and a woman.
Because of that law, the Defense of Marriage Act, which defines marriage as between a man and a woman, Vandiver was not able to sponsor Velandia for a green card, as a heterosexual person could sponsor a spouse.
Velandia's visitor visa expired, and he was placed in deportation proceedings. The couple's attorney, Lavi Soloway, the founder of a group aimed at stopping the deportation of gay and lesbian spouses of Americans, filed to have the order canceled.
Immigration and Customs Enforcement officials in New Jersey notified the couple Wednesday that they were ending deportation proceedings against Velandia.
"It's an amazing relief to go from one day having your spouse being deported, to the next day looking forward to a life together as a married couple; building it, and planning it, just like any other married couple," Vandiver said.
The case has drawn attention to the complexities faced by many of the estimated 36,000 gay and lesbian couples of mixed nationality in the U.S.
Soloway said that although the decision in Velandia's case did not set a legal precedent, it was the first involving the spouse of a lesbian or gay American in which the Department of Homeland Security showed it has the discretion to evaluate the merits of each case and, when applicable, decline to pursue deportation.
"The administration clearly believes it is discriminatory and unconstitutional to have a law that denies recognition to lawful marriages of gay and lesbian citizens," Soloway said. "By extension, it's unthinkable this administration would take the position that the spouse of a gay and lesbian American should be treated any differently than the spouse of a straight American citizen."
An email and phone message left Thursday afternoon for Immigration and Customs Enforcement officials in New Jersey had not been returned by early evening.
President Barack Obama reiterated at a news conference Wednesday that he had instructed the Justice Department to stop defending the marriage act in court. He said he supported gay equality but repeated his position in support of civil unions instead of marriage, saying the definition of marriage was best left to states.
Obama's instruction to stop defending the marriage act factored into Velandia's deportation case. In May, his case was adjourned by a Newark immigration judge, who said clarification was needed from U.S. Attorney General Eric Holder after he intervened in a similar case.
Holder had set aside a Board of Immigration Appeals ruling allowing the deportation to Ireland of Paul Wilson, a gay man illegally in the U.S. who entered a civil union in New Jersey with his male partner. In that case, the board had based its decision to deport on the Defense of Marriage Act.
Holder asked the judges to determine whether Dorman could be considered a spouse under New Jersey law, and whether he would be a spouse under immigration law were it not for the Act, according to a copy of the decision. The board's decision is pending.
Supporters of the Defense of Marriage Act say that the administration's actions send a confusing message, and that the debate over the law should not be conducted through executive branch nullification, but through regular channels. Some members of Congress want to repeal the law, and many advocates expect a federal court to invalidate it, although the process could take years.
U.S. Rep. Rush Holt, who represents the central New Jersey district where Vandiver and Velandia live, wrote a letter in April asking the Obama administration to halt deportation proceedings against the same-sex spouses of U.S. citizens in light of Holder's actions.
Velandia told The Associated Press on Thursday that although he was elated his deportation had been halted, he remains in legal limbo because he cannot be sponsored for a green card by his spouse.
"It's basically given me my life back, being able to be with my husband after feeling so much tension over waiting to see what was going to happen with me," Velandia said. "I'm just so happy they've given me the opportunity to stay with the person that I love."
This is based on a story by The Associated Press.