Advocates Weigh in on Lesbian Marriage Immigration Case

A class-action suit filed by three residents of Irvine, California poses the latest of many challenges to Homeland Security's ongoing discriminatory practices on the rights of green-card applicants who are married to same-sex spouses. Plaintiffs in the case are Jane DeLeon, a Philippines citizen whose employer is sponsoring her application; her 20-year partner, U.S. citizen, Irma Rodriguez, who DeLeon married in California prior to the passage of Proposition 8; and DeLeon's son, 25-year-old Martin Aranas.

"It's clearly the kind of case where typically the waiver would have been granted, but it was simply denied based on DOMA. The suit also seeks an injunction to halt the deportation of immigrants in same-sex marriages who would qualify for legal status, as overruled by DOMA," DeLeon's attorney, Peter Schey, president of the Center for Human Rights and Constitutional Law, told the Associated Press.

DeLeon can't obtain the required waiver because the U.S. government won't recognize her marriage, per the 1996 federal Defense of Marriage Act (DOMA), despite the Obama administration's repeated insistence that it doesn't uphold that policy. The suit is pending before the U.S. District Court for the Central District of California.

Rodriguez is afflicted with serious medical problems that could prevent her from moving to the Philippines if DeLeon and her son are deported, which could occur within the next year. Many wonder if DeLeon's case will be tried in time to prevent this.

According to two human rights advocates who spoke to EDGE, DeLeon and her son's best chances to remain in the U.S. will ultimately depend on separate actions that were filed earlier, as well as pre-emptive actions that the Obama Administration could and should take.

Steve Ralls, a spokesperson for Immigration Equality, said that while his organization won't specifically comment on pending litigation outside of their own cases, the favorable resolution of cases like DeLeon's depended on issues already in the legal queue.

Ralls said that earlier this year, Immigration Equality filed a DOMA challenge in the Eastern district of New York on behalf of five LGBT bi-national couples. Before doing so, they consulted very closely with other LGBT litigation experts such as Lambda Legal to ensure they put together a smart strategic case that would be of the best benefit to the bi-national couple community.

"We continue to believe that the suit is the right one, in the right place, at the right time," said Ralls. "It's critical that the courts weigh in on DOMA, sooner rather than later. Certainly for all bi-national GBLT couples who are facing deportation, it's especially critical. The good news is that advocates on both sides of the DOMA issue agree on one fundamental point: that the Supreme Court needs to take a DOMA challenge, and needs to rule."

Ralls was hopeful that the high court would take up one of the DOMA challenges in its next session, but felt that it was unlikely that the DeLeon case would be one of those, because other cases filed are so far ahead in their timeline. In all likelihood, the Court will take up the DOMA case. Its decision will be applicable to bi-national couples, but it likely won't be a case with bi-national plaintiffs.

He declined speculating on whether resolutions to the unjust green card denials will occur in time to forestall deportation deadlines for citizens such as DeLeon. Yet he hoped for a DOMA ruling soon.

"If everything moves forward at the high court as we expect, a ruling should occur by this time next year," said Ralls.

Lavi Soloway, an immigration attorney and founder of Stop the Deportation, said that the DeLeon case will take its place at the back of a long line of cases, some of which have been ongoing for years and three of which are now headed to the Supreme Court.

"This is the sixth time a bi-national GLBT couple has gone into Federal Court arguing that the applicants of Section 3, DOMA, in an immigration context, is a violation against the equal protection guarantee of the U.S. Constitution. In addition, this is approximately the 20th case to challenge DOMA, period," said Soloway.

He felt strongly that the Obama Administration needs to take overdue action to render individual cases of this nature moot, noting that they created a special interagency working group between the Department of Justice and Department of Homeland Security to make sure the guidelines issued in June 2011 were implemented. These guidelines that should be followed would protect all married LGBT bi-national couples that would otherwise be eligible for a green card.

"The administration has a responsibility to keep this family together," said Soloway. "Frankly, the administration needs to take action across the board for all similarly situated couples and put a moratorium on deportation, not leaving it to a case-by-case basis. They need to hold all green card cases filed by same sex couples in abeyance -- waiting until final resolution is made by the Supreme Court."

Soloway said that sadly, the DeLeon couple was facing something that thousands of same-sex couples, many with children, are facing every day. Although he applauded the Obama Administration for showing creativity, enthusiasm and a commitment to move forward on other issues of equality to protect LGBT families, he admitted it would take some time before results of these immigration struggles would show.

"Congress is unlikely to resolve problems that are faced by gay and lesbian Americans with foreign spouses any time soon," said Soloway. "Every day, there are gay and lesbian couples who face separation from each other and from their children. This is not a situation we can tolerate one more day."