Love May Conquer All in DOMA Challenge Case

In October 2010, a group of married, binational LGBT couples came together to form Stop the Deportation

In October 2010, a group of married, binational LGBT couples—working with attorneys Lavi Soloway and Noemi Masliah, founders of Immigration Equality and partners in the law firm Masliah & Soloway—came together to form Stop the Deportations. The campaign sought to raise awareness of the Defense of Marriage Act (DOMA)’s inherent cruelty: because the law prevents the federal government from recognizing legally married same-sex couples, binational LGBT couples have no access to immigration laws that allow all American citizens to petition for a green card for their foreign spouses. As a result, binational couples face legal obstacles that their heterosexual counterparts never encounter.

According to the campaign, DOMA is the often the only obstacle preventing married binational couples from achieving resolution of their immigration issues. Because of DOMA, married binational couples are faced with the constant threat of permanent separation due to expiring visas or deportation orders. Many are exiled to a tiny number of third-party countries where their relationships are recognized under the law. Some are unfairly relegated to maintaining long-distance relationships via phone and email.

One couple behind the recent headlines is Monica Alcota and Cristina Ojeda. Alcota came to the United States from Argentina a decade ago. She married Ojeda, an American citizen, last August in Connecticut. Despite their marriage, Alcota was slated for deportation because she had overstayed her tourist visa.

But on March 22, a judge in Manhattan adjourned the deportation proceedings, allowing the couple to go ahead with their application to have their marriage recognized for purposes of federal immigration law.

Necessarily, that means challenging DOMA’s questionable constitutionality.

President Obama may have helped their case when he announced in February that the White House won’t defend the DOMA in court. That decision gave Alcota, and others like her, the opportunity to approach the immigration courts.

According to Alcota and Ojeda’s attorney Lavi Soloway, the couple needs to press their claim with the U.S. Citizenship and Immigration Services (USCIS) through a form known as Form I-130, wherein Alcota would be recognized as “the spouse of a United States citizen.”

“It’s almost impossible to overstate the significance of what happened in there,” said Soloway immediately after the March 22 hearing. “An adjournment based on an I-130 [would never] have happened a year ago.”

Soloway & Masliah argued that their Alcota and Ojeda’s marital status should qualify Alcota for permanent residency, as would be the case with any heterosexual couple. They also say that a 2010 US court ruling striking down the Defense of Marriage Act’s denial of federal recognition for legal same-sex marriages—coupled with the Justice Department’s recent decision to stop defending DOMA’s constitutionality on that point—opens up the real possibility that Alcota and Ojeda may be accorded the recognition that they seek.

According to the New York Daily News, Ojeda was pleased with the end result. “She could have said no,” said Ojeda, in reference to Judge Terry Bain, “but instead, she gave us time. Little by little, we’re building up hope and more courage.”

Soloway believes that Bain’s ruling will have a wide-ranging impact, far beyond the single case argued in her court. “I think it was a demonstration of respect for Monica and Cristina, as well as their marriage. They [the courts] were kind and generous about it,” he told the Daily News.

While Ojeda and Alcota’s case may yet have a positive outcome, thousands of LGBT binational couples contend with unfair laws and policies that put undue hardships on their quest to simply live their lives in peace. For more information on the Stop the Deportations movement and legal resources for binational couples, visit stopthedepor
tations.com.