Gay Immigrants Deported, Even in Legal Marriages
Defense of Marriage Act Breaks Up Gay Unions, Hurts Families, Forces Americans Abroad, Activists Say
By SUSAN DONALDSON JAMES
Nov. 1, 2010—
Joshua Vandiver, a Colorado native who is earning his Ph.D. in politics at Princeton University, said he is the studious type who has rarely embraced activism. But now, just months into his legal marriage to Venezuelan Henry Velandia, he is fighting to save his husband from being deported.
Had the couple been straight and not gay, Vandiver would have been allowed to apply for permanent residence status for Velandia, who could then later apply for citizenship.
But their dream to build a life together is been derailed by the 1996 Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman under all federal laws, including immigration.
"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."
On Nov. 17, the couple will go before a federal immigration judge to ask that deportation proceedings be halted until legal challenges or a Congressional repeal of DOMA have been resolved.
Vandiver has applied for a petition to allow Velandia to stay in this country, an application that will surely be denied. And with that rejection letter, the couple will consider a lawsuit. "I see that as discriminatory," said Vandiver.
"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."
The United States is home to about 24,000 same-sex couples in which one partner is an American citizen and the other is not, according to an analysis of 2008 census survey data by the
Williams Institute, University of California Los Angeles Law School. About 25 percent of those couples have children.
No one knows how many of these couples are with 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."
Velandia immigrated to the U.S. in 2002 on an employment-sponsored visa, founding his own dance school, HotSalsaHot. He has appeared in 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."
DOMA Tears Apart Legal Gay Marriages
Soloway is also helping Carry Tucker, 59, of Sacramento, Calif., who has been separated from her legal wife since they were married in Canada in 2007.
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 recognizes legal same-sex marriages, but DOMA stands in their way.
They have now been separated for five years and Tucker's 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, in the District of Columbia and in one Indian tribe in Oregon.
In California, same-sex marriages were performed for five months until voters enacted Proposition 8. 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.
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.
President Obama has made it clear DOMA should be repealed. The Respect for Marriage Act, introduced in Congress in 2009, seeks to repeal the law.
His administration's "willingness to defend the letter of the DOMA law, and not the spirit of it, is an open door for those who want to redefine one-man, one-woman marriage by any means possible," said Horne.
Many states have constitutional bans on same-sex marriage, while others have passed laws through their legislatures.
"A majority of Americans support marriage, including voters in 31 states who have "defended the one-man, one-woman definition of marriage at the ballot box," she said.
But for the first time, more than half of all Americans (52 percent) said they would support the federal government giving "legal recognition to marriages between couples of the same sex," according to a recent poll from the AP-National Constitution Center.
Only 46 percent supported such marriages in 2008.
"We are at a historically significant moment," said lawyer Soloway.
The Constitutional problem with DOMA is that states have historically controlled family law in issues of marriage, parenting and inheritance, according to Jennifer Pizer, senior counsel at Lambda Legal and director of the National Marriage Project.
"Congress should not be interfering in the way that DOMA does," she said.
So far, two cases have challenged DOMA as a violation of the 10th amendment that honors the authority of states and prohibits intrusion by the federal government.
Ultimately, say advocates, the courts will intervene when they determine state laws against same-sex marriage violate the Constitution's respect for individual liberties and state rights.
"Congress missed its power," said Pizer.
"Same-sex couples are not like a generation ago, when they consigned themselves to unhappy heterosexual marriages because following their own dreams was not possible," she said. "Now there is a visibility of gay people in all walks of life who can follow their heart and lead a fulfilling and not a miserable life."
Such was the case with Vandiver and Velandia, who created a Facebook page -- Save Our Marriage -- that in just one week has more than 6,000 supporters.
"It's sad how many people are affected by DOMA," said Velandia. "But it's pretty nice we can help."
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."