Immigration Judge Adjourns Deportation Proceeding of Bi-National Lesbian Couple Pending DOMA Litigation

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In what appears to be the first such action of its type, an Immigration Judge in Manhattan has adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

A 2010 US court ruling striking down the Defense of Marriage Act’s denial of federal recognition for legal same-sex marriages, they say –– coupled with the Justice Department’s recent decision that it could not and would not defend DOMA’s constitutionality on that point –– opens up the real possibility that the couple in this case (Alcota and Ojeda)  may be accorded recognition.

In a March 22 hearing in the US courthouse at 26 Federal Plaza in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the U.S. Citizenship and Immigration Services (USCIS) –– a unit of the Department of Homeland Security –– through a family based petition as the spouse of a United States Citizen.

For  the couple , the legal developments of the last eight months –– in Boston, Washington, and now Manhattan –– represent some respite from what has been “hanging over our heads,” one explained –– “that I would lose her.” As the couple traveled through upstate New York by bus to Queens, where the two women now live, a spot border control check resulted in the detention of Ms. Alcota, a national of Argentina. She ended up in a privately-run detention center in Elizabeth, New Jersey, from which she could have been deported at any time.

Finally, an Immigration Judge — a woman, the couple noted —determined she had “a reasonable fear” of persecution should she be returned to Argentina. She had fled her home country, where she lived in a region near the Chilean border, with her then-partner because the two believed their lives were at risk.

Read full story here.

-Sheila I Vélez Martínez

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About Sheila Velez Martinez

Visiting Clinical Professor Immigration Law Clinic University of Pittsburgh - School of Law 210 South Bouquet Street - Sennott square - Room 5211 Pittsburgh, PA 15213 Telephone: 412-383-9897 Fax: 412-648-1947 Mailing Address: University of Pittsburgh School of Law P.O. Box 7226 Pittsburgh, PA 15213-0221
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