Gay Immigrants on Emotional Roller Coaster Over Defense of Marriage Act

PHOTOPlayCourtesy Josh Vandiver and Henry Velandia
WATCH Same-Sex Marriages on Hold in California

Venezuelan Henry Velandia legally married his gay American husband last year in Connecticut, and under federal laws that do not recognize same-sex marriage, he has faced deportation.

For months, Velandia's husband, Joshua Vandiver, a Colorado native who is earning his Ph.D. in politics at Princeton University, has been fighting to get him a green card. If they were a straight couple, there would be no problem -- a foreigner can live in the U.S. if married to an American citizen. Gay couples have not had the same right.

Their hearts soared this week when the Obama administration put a hold on decisions in immigration cases involving married gay couples -- a temporary reprieve while lawyers evaluated the law.

But their hopes were dashed Wednesday when the United States Citizen and Immigration Services announced it would continue to process deportations, potentially separating couples like Velandia and Vandiver.

There has been legal confusion over these cases since February, when the administration said the 1996 Defense of Marriage Act (DOMA) is unconstitutional.

"The result of the USCIS changing course is that we are going to have families that are separated and torn apart and Americans citizen will lose their partners," said Steve Ralls, spokesman for Immigration Equality, a group that advocates for LGBT couples.

"We believe that it is unacceptable, given what the administration said and that Obama believes that DOMA is unconstitutional. It's inappropriate to use an unconstitutional law to force families apart."

He said there are 35,000 couples who will be affected by the policy being enforced by Homeland Security, which governs immigration services. Of those, about 47 percent have children, according to Ralls.

Velandia and Vandiver's dream to build a life together was derailed by the law, which defines marriage as between a man and a woman under all federal laws, including immigration.

American citizens are routinely allowed to obtain green cards for their immigrant spouses, but not if they are homosexual. Gay rights advocates have said the law is discriminatory.

"If you are a bi-national couple that is heterosexual, you get to stay here and work here," said Richard Socarides, president of Equality Matters, told The New York Times. "If you are gay, you get deported."

Vandiver told last year that he is the studious type who has rarely embraced activism.

"I am a scholar of ancient Greek political thought and the Renaissance and politics," said Vandiver, 29. "I never intended or wanted to be an activist. But I have to do what is necessary to save my marriage and to keep the one I love in this country. I think that is my right as an American citizen."

Vandiver has applied for a petition to allow Velandia to stay in this country.

"I am really frightened thinking that I will have to live without my other half," said Velandia, a salsa dancer. "But we have faith and are doing the best we can."

No one knows exactly how many of these gay couples have immigration problems. Some obtain legal residency through work visas, applying for asylum or getting green cards on their own. Others leave for countries that have more favorable laws.

"We are bringing this to light to help policy makers understand exactly how it impacts lives and to find a remedy and to consider whether it's a high priority to deport a lawfully married spouse," said their Los Angeles lawyer, Lavi Soloway.

Soloway is representing the couple and 11 others around the country who face deportation of a foreign-born spouse.

"At the time [DOMA] was passed, gay couples in the U.S. didn't have the opportunity to be married," he said. "Now, we finally have a critical mass of same-sex couples who are seeing the impact of DOMA."

DOMA Tears Apart Legal Gay Marriages

Velandia immigrated to the U.S. in 2002 on a visitor's visa. He founded his own dance school, HotSalsaHot, and has appeared on the Spanish-language television show "Mira Quien Baila."

Vandiver and Velandia have lived together in New Jersey since 2006. Princeton recognized them as domestic partners in 2007, and this summer, they married in Connecticut, where same-sex marriage is legal.

"I started from zero in this country -- new language, new culture," said Velandia. "It's been like the American Dream."

But when his visa expired, an application for a green card was denied. In 2009, Velandia received a notice of deportation. If deported, he could be barred from entering the U.S. for 10 years.

According to the New York-based advocacy organization Immigration Equality, thousands of these gay couples -- one American and one an immigrant -- leave the U.S. each year for countries where gay immigrants are welcome.

Vandiver and Velandia say neither wants to leave the United States.

"My training is to be a professor and teach political theory in an American context," said Vandiver. "I really need to stay in America to pursue my studies and my work. I don't think I should have to leave America."

Velandia said he cannot imagine going back to Venezuela, where he lived a closeted life.

"With my relationship with Josh in America, I found the love of my life. I can actually be myself," he said. "It's ridiculous to try to go back to Venezuela being a gay man. I was repressed by the culture and religious beliefs. Going back would be like going into the past."

"We expect DOMA to be defeated in a few years and be history," said Soloway. "We want people like Henry to be here."

Carry Tucker, 55, of Sacramento, Calif., has been separated from her legal wife since they were married in Canada in 2007. Her spouse, Claire Pollard, 49, is a citizen of the United Kingdom.

"We tried every legal way to get Claire into the country to live with us," said Tucker, an Air Force veteran who calls herself a patriot. "We looked into everything."

The couple was prepared to move to Canada where Pollard had applied for legal residence under the skilled-worker program, but the economy went sour in 2008.

Under Gov. Arnold Schwarzenegger, California recognized legal same-sex marriages, but DOMA stood in their way.

They have now been separated for five years. Tucker says her 18-year-old daughter is a "stranger" to Pollard.

"All of her teen years, my daughter did not have her loving stepmother in her life," said Tucker. "They are the two loves of my life, and they don't know each other. That is the most painful part for me."

Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia, and is recognized by one Indian tribe in Oregon.

In California, same-sex marriages were performed for five months until voters enacted Proposition 8 in 2008. A federal judge has ruled the ban unconstitutional, and a court of appeals has issued a stay on the ruling, which is expected to work its way to the Supreme Court.

In New York, Rhode Island and Maryland, same-sex marriages cannot be performed, but they are legally recognized.

DOMA Protects Children, Says Focus on the Family Analyst

Groups opposed to same-sex marriage say DOMA is in the best interests of children.

"There will always be exceptions, but the definition of marriage affects all American children," said Ashley Horne, federal policy analyst for CitizenLink, a policy arm of Focus on the Family.

"A compassionate society promotes what is in their best interest, and that includes policies that would give every child a chance for both a mother and a father."

She said these couples know that legislative efforts to overturn DOMA will fail. "There's a reason they're not doing that -- they don't have the votes."

"Polls have tended to overestimate voter support for redefining marriage, but the national discussion gives thoughtful Americans the opportunity to consider the purpose of marriage -- -whether it's most valuable as validation for adult relationships, or as the only family structure that attempts to give a mother and father to every child," said Horne.

Many states have constitutional bans on same-sex marriage, while others have passed laws through their legislatures.

For now, both Velandia and Vandiver are unsettled about the law.

Vandiver is optimistic that "equality and fairness will win," but he said, "No one should lose a spouse when a law is in dispute for being unconstitutional."

"I never imagined it was possible that a spouse could be taken away by the government and deported to another country and forced to leave," said Vandiver. "They threaten to take away the thing you love the most."