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U.S. closes deportation proceedings against gay Venezuelan man married to American husband

News release from Stop The Deportations:

Statement by Lavi Soloway, attorney for Henry Velandia and Josh Vandiver, and founder of Stop The Deportations – The DOMA Project:

“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 thereby educating the general public, elected officials and executive branch agencies about the cruel impact of DOMA on the lives of married binational lesbian and gay couples. This decision will lay the foundation for administrative closure of 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.”

SUMMARY

On June 29 Henry Velandia and Josh Vandiver received the news that the Newark Immigration Court had granted a Motion by the Department of Homeland Security, Immigration and Customs Enforcement Chief Counsel, Jane Minichiello, to administratively close deportation proceedings that had been first initiated in 2009.

The decision had been set in motion on June 9 when the ICE Chief Counsel reconsidered a request that had been originally filed by the couple’s lawyer, Lavi Soloway, in advance of a May 6 deportation hearing. In that request, Soloway urged the government to exercise prosecutorial discretion in Mr. Velandia’s case citing on his marriage to an American citizen; the impossibility and danger, as a gay binational couple, of relocating to Venezuela; the changing landscape of DOMA including the President’s decision to cease defending the law because he determined that it was unconstitutional; Mr. Velandia’s good moral character; and his strong ties to his Princeton, New Jersey community. Although the government rejected this request at the time, the Immigration Judge post-poned the hearing on May 6 until December, giving Mr. Velandia and Mr. Vandiver a 7 month reprieve from deportation.

In a brief telephone call three weeks ago, ICE Chief Counsel notified Mr. Soloway that the government had a change of heart. ICE had decided to grant Soloway’s request for Administrative Closure because “the case was not an enforcement priority at this time.” ICE Chief Counsel notified Immigration Judge Alberto Riefkohl who granted the government’s Motion to Administratively Close proceedings on June 13. The decision was received on June 29.

What does this mean?

For the first time ever, ICE has decided that it would no longer pursue the deportation of a spouse of a gay American citizen. It has done so in the midst of active deportation proceedings, responding to months of relentless, high profile advocacy that successfully argued that this loving, married couple should not be forced apart only because of DOMA. As a result, the case has been closed and Henry Velandia’s deportation proceedings have been removed from the court’s calendar. While the move does not grant Henry any lawful status, it does mean that the threat of deportation has been removed. This historic move caps a nearly year-long battle waged by Josh and Henry as part of the Stop The Deportations campaign.

BACKGROUND

Henry Velandia, 27, is a professional salsa dancer and dance teacher from Venezuela, and Joshua Vandiver is a Ph.D. candidate in Political Theory at Princeton University, originally from Colorado. The couple has been together for five years, and after the couple married last year in Connecticut, Josh filed a marriage-based green card petition for Henry. The petition was denied in January solely because of the Defense of Marriage Act. After the announcement by the White House that the administration would no longer defend DOMA in court because it believed the statute to be unconstitutional, Josh filed a second marriage-based green card petition for Henry. That petition is still pending with USCIS.

For the past year they have lead a high profile campaign leading the Stop The Deporations-DOMA Project efforts to stop the Henry’s deportation which would tear them apart, destroy their marriage and lead to Henry being barred from the United States for 10 years.

If Henry and Josh were an opposite-sex couple, there would be a clear path to resolve to this very predicament. Even in deportation proceedings, an American citizen can sponsor his or her foreign spouse for a “green card.” However, because of the so-called Defense of Marriage Act, the federal government cannot recognize Henry and Josh’s same-sex marriage for immigration purposes. Consequently, Henry Velandia is denied access to the typical marriage-based green card process.

After months of advocacy, on May 6 Newark Immigration Judge Alberto Riefkohl adjourned Henry’s deportation case citing the couple’s marriage, the pending marriage-based petition that Josh filed for Henry, and considering recent legal developments involving DOMA a related deportation case.

Just a month later, on June 9, Newark’s Immigration and Customs Enforcement (ICE) Chief Counsel, Jane Minichiello, contacted Lavi Soloway, Henry and Josh’s lawyer, and founder of the Stop The Deportations- DOMA Project. ICE Chief Counsel informed Mr. Soloway that ICE had re-considered its position and had decided to seek Administrative Closure of the case against Henry by filing a Motion with the Immigration Judge. The Immigration Judge tentatively set a hearing date for July 6 to consider the Motion, but the process moved more swiftly than expected. ICE Chief Counsel filed the Motion on June 10 and the Immigration Judge granted it on June 13. The couple received the decision by mail on June 29. It read:

"A Motion to close the proceedings administratively has been filed in the above entitled matter.  Upon due consideration, IT IS HEREBY ORDERED that the Motion be granted. Joint Motion is made part of this order by reference. Parties are advised."

CONCLUSION

Tens of thousands of binational same-sex couples will celebrate this historic victory with Josh and Henry. It is the first concrete step taken by the administration to prevent a married gay couple from being torn apart by a “DOMA deportation.” Lesbian and gay binational couples who are fighting to stay together in this country; couples who are separated by cruel, discriminatory laws; and couples who have been forced into exile—can all rejoice at this milestone. It is one more step in a long battle toward full equality.

STOP THE DEPORTATIONS – THE DOMA PROJECT is a campaign which was co-founded by the couple’s attorney, Lavi Soloway in July 2010 along with his law partner, Noemi Masliah. For nearly two decades, Soloway has been the most prominent attorney and advocate on LGBT immigration law and policy in the United States. He has worked exclusively in this field since co-founding the non-profit organization, Immigration Equality, in 1993.

More information on the Stop The Deportations - DOMA Project can be found at www.stopthedeportations.com.

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