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U.S.: In Shifting Political Landscape, Gay Couple Granted Two More Years

Elizabeth Whitman

NEW YORK, Jul 15 2011 (IPS) - A California immigration judge has allowed Alex Benshimol, a Venezuelan citizen, and his U.S.-born husband Doug Gentry to remain together in the United States for at least two more years, in another victory for same-sex bi-national couples.

The decision reflects the gradual and continuing transformation in legal settings for gay and lesbian couples. The Defence of Marriage Act (DOMA) declares that marriage is a union only between a man and a woman, and thus refuses to recognise gay or lesbian marriages.

In a deportation hearing in San Francisco Wednesday morning, Immigration Judge Marilyn Teeter offered two options. She allowed the federal government 60 days to decide to drop the deportation proceedings entirely. If the government does not do so, the deportation proceedings will return to Teeter in September 2013.

Teeter’s decision “demonstrated compassion and understanding”, Lavi Soloway, the couple’s lawyer said in a statement. He said Gentry and Benshimol were “relieved” about the decision but that they would continue fighting against deportations under DOMA.

Postponing the deportation hearing for another two years has significant implications for other same-sex bi-national couples residing in the United States and currently facing similar threats of being torn apart by deportation, even as it demonstrates immigration courts’ growing refusal to deport spouses in same-sex couples.

Just two weeks ago, New Jersey immigration officials cancelled deportation proceedings for Henry Velandia, a Venezuelan married to Josh Vandiver, a U.S. citizen.

Soloway told IPS he believed that this case and several others showed the crumbling of DOMA, which he called a “discriminatory statute” as it does not afford same-sex married couples the same rights as heterosexual married couples. Its enforcement in immigration courts and in other legal areas, such as the Internal Revenue Service (IRS), “is starting to disintegrate”, he said.

A changing landscape for DOMA

In February, U.S. President Barack Obama and Attorney General Eric Holder declared DOMA unconstitutional. Some experts have said that stance will have limited concrete legal impact until a federal court declares DOMA unconstitutional or Congress repeals the law, but Soloway suggested otherwise.

“There really are some substantial changes happening,” he said, citing cases besides Benshimol’s where deportation proceedings against a partner in a same-sex marriage were also postponed or even dropped entirely. Additionally, some bankruptcy courts are also examining the filings of same-sex married couples as if the federal government recognised their marriage.

Courts are responding to “a dynamic legal landscape”, Soloway said. “With each incremental step, the administration gets closer and closer to not enforcing the Defence of Marriage Act,” rather than simply not defending it, he explained.

He was optimistic that DOMA would arrive before the Supreme Court within a matter of two to three years, but that same-sex rights would probably see more victories before then.

In the meantime, judges are showing “flexibility”, meaning that they’re taking into account “the fact that the administration of which this judge is a part is no longer defending the law because the administration believes it’s no longer constitutional,” Soloway told IPS.

DOMA is a law with far-reaching effects. Spouses in heterosexual marriages can file marriage-based green card petitions for foreign- born husbands or wives, for instance, but same-sex spouses are denied that right under DOMA. Roughly 36,000 same-sex bi-national couples currently reside in the United States.

Or, as the experience of Edie Windsor demonstrates, the federal government does not always recognise same-sex marriages for tax purposes. When her wife Thea Spyer passed away in 2009, Windsor was forced to pay estate tax on the inheritance Spyer left her, even though under federal tax law estate tax does not apply to surviving spouses. Windsor has filed a lawsuit challenging the constitutionality of DOMA.

Two more years together

Currently California residents, Benshimol and Gentry have been a couple for six years and married in Connecticut last year. Twelve years ago, Benshimol arrived in the U.S. on a tourist visa, which he overstayed. In July 2010 Gentry filed a marriage-based green card petition on Benshimol’s behalf, but in March it was denied on the basis of DOMA.

Although the landscape surrounding DOMA is shifting in the direction of greater rights for gay and lesbian couples, nothing is certain yet. For same-sex bi-national couples whose marriages are threatened by deportation, options are extremely limited if they want to stay together.

Unless the foreign partner can stay in the U.S. on a temporary work or study visa, they can move to one of the 16 countries whose laws more lenient towards gay couples, such as Canada or Australia.

If one spouse is deported, the couple will be split and caught in a potentially dangerous situation, particularly if the deported spouse has to return to a country with policies that discriminate against or are potentially dangerous to gays. In Venezuela, for instance, police have targeted gays in arbitrary arrests and detainment.

Before Benshimol’s hearing, many supporters and activists rallied outside the courthouse. Gentry, Benshimol and their lawyer have campaigned actively through Stop the Deportations-the DOMA Project to garner awareness about Gentry and Benshimol’s situation and attention more generally about DOMA.

Gay marriage is legal in six U.S. states and the District of Columbia. Other states instead choose to recognise same-sex civil unions or domestic partnerships. Despite the variety of states’ approaches, however, the federal government has long refused to recognise same-sex marriage. But if the cases of Benshimol and others are any evidence, change is not far off.

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