A gay Venezuelan man married to an American man will temporarily not be deported after an immigration judge ruled Friday to suspend his deportation based on the recent intervention of U.S. Attorney General Eric Holder Jr. in a similar same-sex marriage immigration case.
Judge Alberto J. Riefkohl of Newark, N.J. suspended the deportation of Venezuelan salsa dancer, Henry Velandia, married to Princeton graduate student, Josh Vandiver, because Holder on Thursday intervened and suspended the deportation of a man from Ireland who is joined in a civil union with a U.S. citizen.
Holder suspended the deportation of Irishman Paul Wilson Dorman and sent his case back to the immigration appeals court, asking it to consider several possible grounds on which the Irishman might qualify for legal residency.
Both Dorman, who is joined to a U.S. citizen through a civil union, and Valandia were denied legal residency because of the Defense of Marriage of Act defines marriage as between a man and a woman and therefore does not recognize same-sex marriage.
Judge Riefkohl said he chose to delay Velandia's deportation to December, at the earliest, to allow time for the attorney general and the appeals court to work out a similar deal for the Venezuelan.
The chairman of the House Judiciary Committee, Lamar Smith (R-Texas), criticized Attorney General Eric Holder of having “instructed an immigration court to ignore DOMA in future rulings,” according to The New York Times.
In February, President Barack Obama issued an executive order to the Department of Justice to cease defending the 1996 law signed by President Bill Clinton.
While the DOJ cannot defend the constitutionality of DOMA in court, it still must obey the federal law. Moreover, DOMA has not been struck down either legislatively or in the courts and therefore is still a federal law that must be enforced.
But in March, the U.S. Citizenship and Immigration Services wrongly issued a temporary suspension on deportation cases of gay foreigners joined in same-sex marriages to American citizens.
"USCIS has issued guidance to the field, asking that related cases be held in abeyance, while awaiting final guidance related to distinct legal issues,” said Christopher S. Bentley, the Department of Homeland Security's spokesman, in a statement.
But Mathew Staver, founder and chairman of Liberty Counsel, denounced the USCIS's decision.
"[DOMA] governs the definition of marriage from a federal standpoint under the federal laws for every federal agency including the immigration services. They must abide by that federal law," he insisted. "No federal agency can act contrary to that law."
Bentley later told The Christian Post that the agency lifted the abeyance and would continue with deportation proceedings for gay foreign nationals regardless if they are in a same-sex union. The agency also criticized media outlets' assertion that married gay foreigners could now apply for green cards as untrue.
American Immigration Lawyers Association told CP that it too would not counsel gay foreign nationals joined to a same-sex citizen to apply for a green card. AILA spokeswoman Jenny Levy said gay foreign nationals who apply should not expect approval for their green card applications.