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Lesbian couple tests immigration law under Administration’s new stance on DOMA
March 20, 2011
By Adam Bink
This is an interesting challenge. Via Towleroad, a press release from the couple:
Deport
“This is the first time a married same-sex couple will appear in court to seek termination of such proceedings since the Obama administration reversed its position on Section 3 of the Defense of Marriage Act (DOMA) on February 23, calling it unconstitutional and announcing that it would not defend DOMA in pending and future federal court challenges.”
“Cristina Ojeda and Monica Alcota have been together since July 2008 and live in Queens, New York. In August 2010 they married in Connecticut. Cristina filed a marriage-based alien relative petition on behalf of Monica in September 2010. That petition is currently pending before U.S. Citizenship and Immigration Services. Alcota came to the United States in October 2000. She is a law-abiding, hard-working and talented antiques restorer and devoted, loving wife to Cristina.”
“The couple’s lawyer, Lavi Soloway, will argue that removal proceedings should be terminated consistent with the Immigration and Customs Enforcement’s long-standing policy of prosecutorial discretion which favors family unification and the accommodation of sympathetic humanitarian circumstances. ICE and the Court should consider the rapidly changing landscape of DOMA. That changing landscape includes the Obama administration’s new position on DOMA which is expected to dramatically alter the course of future litigation against DOMA, but it also includes other significant developments.”
According to the couple’s website, Monica faced severe homophobia and intolerance in Argentina that forced her to leave the country.
Filed under: DOMA trials
Having technical problems? E-mail prop8trial AT couragecampaign DOT org for assistance!
46 Comments Leave a Comment
1.
Ed Cortes | March 20, 2011 at 2:35 am
Best wishes to Cristina and Monica!!
2.
Sagesse | March 20, 2011 at 2:56 am
Litigation is expensive, and should be strategically sound (likely to prevail). I wouldn't dream of suggesting anyone launch a shaky DOMA challenge, just to throw a monkey wrench into the works. That said, a wave of new DOMA cases will pose a problem for the House which has promised to take up the DOMA cases the DOJ will not defend.
Schadenfreude on a Sunday.
3.
Sagesse | March 20, 2011 at 3:00 am
Visibility.
Ricky Martin, 'True Blood,' Anderson Cooper Win GLAAD Awards
http://www.ontopmag.com/article.aspx?id=7863&…
4.
Sagesse | March 20, 2011 at 3:02 am
And visibility.
Lady Gaga Honored At Gay Fundraiser
http://www.ontopmag.com/article.aspx?id=7861&…
5.
Sagesse | March 20, 2011 at 3:06 am
FRC Claims Obama's Anti-Bullying Program Pushes A Pro-Gay Agenda
"a homosexual agenda that seeks to make children hide their Christianity and their religion in the closet and to silence those who would speak out against what they don't believe,” McClusky said."
Their LGBT classmates are not a 'what', they're a 'who'.
http://www.ontopmag.com/article.aspx?id=7864&…
6.
Sagesse | March 20, 2011 at 3:10 am
Very hard to read.
John Joe Thomas Told Witness: 'I Killed A Man'
http://www.ontopmag.com/article.aspx?id=7862&…
7.
Richard A. Jernigan | March 20, 2011 at 3:26 am
Thanks for this, and especially for including the link to their website. This is part of what I LOVE about P8TT. NOt only do we get news about things like this, we get links so that we can find out how to help.
8.
Sagesse | March 20, 2011 at 3:33 am
Live-Blogging the SLDN National Dinner: SLDN Making History
http://www.pamshouseblend.com/diary/18878/liveblo…
9.
Zak | March 20, 2011 at 3:50 am
FRC pushes an ANTIgay agenda.
DOMA pushes an ANTIgay agenda.
DADT pushes an ANTIgay agenda.
Prob 8 pushes an ANTIgay agenda.
The "gay agenda" is about equality. Nothing more. (as far as I know…. If someone here knows more, please let me know)
10.
Ronnie | March 20, 2011 at 3:56 am
I concur…..<3…Ronnie
11.
karen in kalifornia | March 20, 2011 at 4:25 am
Exactly. Good luck with this, this INS docket.
12.
Sarah | March 20, 2011 at 4:35 am
Zak, don't you know we are trying to take over the world here? Looks like somebody needs a revised copy of our agenda… Anyone here have a copy they can send over?
;-D
13.
Sheryl Carver | March 20, 2011 at 4:57 am
I never got even an unrevised copy, Sarah.
I thought I'd get a copy in the mail after I realized I was bisexual, but that was decades ago & still nothing. Would you let whoever is responsible for sending these out know about this, please?
14.
Kathleen | March 20, 2011 at 5:00 am
√
15.
Steve | March 20, 2011 at 5:01 am
The fact that Argentina has marriage equality won't help their case. Sure, things aren't roses and fluffy bunnies everywhere, and it was probably different ten years ago than today. But it's not like they are fleeing from and African and/or Islamic country where they would actually face real punishment. They might be social outcasts in some areas of Argentina, but to claim asylum it's usually necessary to be actively persecuted by the government.
16.
Steve | March 20, 2011 at 5:02 am
The recent tendency to appropriate terms and memes from the gay community is sickening
17.
chris from co | March 20, 2011 at 5:09 am
sounds similar to the Mathew Shepard case A person to another persons life and pulled the he was hitting on me card strangly in this issue it appears god lead him to stone someone. This is were theology went really bad. Hopefully this story can show the truth about hate and the aminition pastors and priest give a deranged person. This case will definatley be intresting. I would love to see if there was any witnesses to his claims.
18.
adambink | March 20, 2011 at 5:12 am
You bet.
19.
Rhie | March 20, 2011 at 5:39 am
Watching…
20.
Leo | March 20, 2011 at 5:52 am
They aren't asking for asylum. They are asking for a marriage-based green card. (One of them is a US citizen.)
21.
Steve | March 20, 2011 at 6:19 am
They don't want literally asylum, but what they want for now is a halt to the deportation proceedings on the grounds not too different from an asylum petition, e.g. the threat of hardship on another country. In this case it would be better if they stick to an attack on DOMA only.
22.
JonT | March 20, 2011 at 9:11 am
☮
23.
Straight Ally #3008 | March 20, 2011 at 9:32 am
Help! We're being oppressed!
24.
Rhie | March 20, 2011 at 9:41 am
I love that picture. So true. Christians, particularly white Christian Men have the most rights, the most privilege in this country. The only thing they will lose through equality is unearned, undeserved, unwarranted privilege. And that is a GOOD thing.
25.
Kalbo | March 20, 2011 at 10:14 am
How easy it is to tell others to be patient as their lives pass them by …
My life is being ruined by DOMA every day. I've reached out a couple years ago to all of the rights groups and was told the same damn thing: Wait. Don't be all cavalier and fuck it up for us. Well I am tired of it. What have they done all this time? This should have been challenged a long time ago, and they should have used their resources to back us up is if they don't like people like us going alone. I don't think they care, and I think that's obvious from their initial opposition to the Prop 8 suit.
Yep, I'm extremely bitter today; I may have to go into exile from my own country in a few months, and I'm pissed off. I'm scared. And depressed. And really, really hating this f—— country. :-<
26.
Steven | March 20, 2011 at 12:48 pm
Couldn't agree with you more.
Endless calls to all sort of Immigration Equality groups….all told me the same party line: "don't challenge DOMA on your own…we are working hard for you…blah blah…."
They told us not to marry….as this will ensure deportation and cancellation of the turist visa….our only hope to be able to commute back and forth to spend time together…at an incredible financial cost !…. I wonder how many straight couples are willing to spend upwards of 25,000 dollars a year to keep a relationship….???
Endless calls to my Senator and Congressman….same story from their staff…."we are doing all we can to ensure passage of UAFA"
All is a big political chess game for these people….they don't seem to care….that one year is a decade for couples who are caught in this nightmare.
It is amazing that we are still together, but often wonder, how many other relationships were forced apart due to the slowness or failure to act.
I wish them luck….lots of luck…..
27.
Steven | March 20, 2011 at 12:55 pm
LOOK IDIOT !
THEY ARE MARRIED
DOESN'T A US CITIZEN HAS THE CONSTITUTIONAL RIGHT TO PURSUIT HIS/HER HAPPINESS ?
IF SO….SHE, AS A US CITIZEN, DECIDED TO MARRIED THE WOMAN SHE LOVES – AND THUS HAVE A CONSTITUTIONAL RIGHT TO HAVE HER WIFE HERE IN THIS COUNTRY, NEXT TO HER….EVERY NIGHT….IN THE SAME BED….LIKE ANY OTHER COUPLE….. OR IS IT THAT THE CONSTITUTION ONLY APPLIES TO HETEROSEXUALS ?
I GUESS THERE MOST HAVE BEEN SOME PRINTING … " WE THE HETEROSEXUAL WHITE CHRISTIAN PEOPLE……"
GET IT !!!???
28.
Andrew | March 20, 2011 at 3:47 pm
I've followed P8TT for many months and this is the first time I have felt I had anything to add in a comment.
I have just finished going through the LEGAL imigration process and recieved my green card less than a week ago.
Whilst I apreciate that people feel these people deserve their support, I have something of an issue with the situation.
If DOMA did not exist and the illegal status was not an issue then they would get exactly the same answer as a str8 couple. Which is: Go back home and apply for a visa at the US embassy in your home country.
Sorry but thats the way it works (actually its more complex than that, but not much).
But if we just consider the situation if DOMA gets struck down… well, shes still an illegal. So she still gets sent home. Shes free to apply for a visa in her home country, but having been deported is likely to rather colour USCIS's opinion.
I'm not offering any opinion on any argument about her applying for asylum or otherwise, but if they think that they should get a free pass on this because they are a SS couple then they haven't looked at the USCIS information. And frankly I think they are doing the rest of the movement a disservice.
Sorry if that offends anyone.
29.
AnonyGrl | March 20, 2011 at 11:52 pm
I believe you can order one yourself, here is one place to check…
http://pinkzo.com/pink-day-planner/
30.
Gregory in Salt Lake | March 21, 2011 at 2:47 am
Kalbo and Steven…sorry about your frustrations and challenge. I wonder sometimes if me and my hubby will survive if something doesn't change soon….its a horrible strain and some days don't feel like can cope…. Today is a good day however for us, sending love, happiness and hope your way…hang in there!! Love Gregory (and hubby)
31.
Bruce | March 21, 2011 at 2:56 am
I have a few questions about advancing their case:
1. Would moving to Nevada, Washington, or California help because those states recognize registered domestic partnerships for community property and the IRS is following suit: http://www.irs.gov/publications/p555/ar01.html?
2. Could an argument be made to get a J-1 visa like those granted by the state department to foreign same-sex partners of their diplomats: http://www.cis.org/north/same-sex-partners-for-di…?
Good luck!
32.
AnonyGrl | March 21, 2011 at 3:08 am
No it is not offensive, but the problem is much more complex because of DOMA. Were she to "go back home and apply for a visa…" she would not get one that any straight married couple would get, because DOMA makes that impossible. So that is not an option for her.
If DOMA did not exist, then yes, she should follow the established legal channels that everyone else follows. Currently those channels are closed to her, which is why she has to do it this way. She is not looking for a free pass, she is looking for a way to achieve the same ends that any straight couple could achieve by that "not much more complex" process you mention. Were that a possibility for her, I would say certainly, she should not be asking for special treatment.
It is not.
33.
AnonyGrl | March 21, 2011 at 3:10 am
And when I say that it is not offensive, I meant Andrew's comment is not offensive. That the PROBLEM exists, that it is caused by the discrimination written into law by DOMA is exeedingly offensive.
34.
Maggie4NoH8 | March 21, 2011 at 3:42 am
Thank you Steven!
That is exactly the point! They are married. They are being treated differently than a heterosexual married couple in the same, exact situation would be treated.
It's UNEQUAL. PERIOD.
35.
Andrew | March 21, 2011 at 6:02 am
I still think you are missing an important point. Even if DOMA did not exist she would still have to return to her home country to apply for a visa. Trying to argue that DOMA is connected to her deportation is disingenuous. She is here illegally and hence has less than zero rights. Just being married doesn't get you an automatic green card or any kind of pardon on the imigration status.
This is frankly a terrible example of the reason DOMA needs to go, because their situation is highly unlikely to change even if (or rather when) DOMA goes.
This is a case that highlights the questions around illegal imigration and all of the baggage that carries with it. The fact that this is a SS couple is just muddying the waters.
If they really wanted to bring down DOMA then they should have started the process without her being an illegal. Trying to fight a court case when the plantif has no right to due process seems a little quixotic.
If someone wants to break DOMA on imigration then they need to follow all the rules so the sponsor has some legal ground to stand on. Sucks to be apart that long (I know, not lawsuit long, but long enough) but its the only way such a case stands a chance.
36.
Andrew | March 21, 2011 at 6:09 am
1. Unlikely. Its USCIS/Homeland Security that are deporting her, for her illegal status. Their marriage makes no difference to her illegal status. The rules are very clear on that, unless you have the right visa/imigration status you don't get a green card.
2. Possible, but unlikely. Its a good point, but I doubt that she would be eligible for a J-1 even if she wasn't an illegal.
37.
Andrew | March 21, 2011 at 6:29 am
Well I wanted to reply to Maggie below, but for some reason I can't.
But I just want to correct the misapprehension that you seem to be under.
They are being treated the same as everyone else. There are very clear rules on marriage based green cards. They have broken the big bad rule of illegal immigration and that undermines any case they might have had. Marriage doesn't get you an automatic green card. Marriage doesn't make the hoops USCIS want you to jump through disappear.
I'm from the 'right kind' of country, and straight, and white, and fairly Christian. And both of us had to jump through a lot of hoops, wait a lot of time and pay a lot of money. Getting through the process can take a year even without any troubles. And that's a year in separate countries.
DOMA is only clouding this case, because a straight couple would be treated exactly the same. Deportation for the non-US Citizen.
Once she was home (and after the near automatic 3-5 year ban she's likely to have earned) her wife could sponsor her for a green card and sue when DOMA became an issue.
Being deported for being an illegal =/= being deported for being a lesbian.
And for the record, I think the sooner DOMA goes the better and that something needs to be done to allow long term illegals some sort of route somewhere. But I don't think that mashing the 2 issues together in one case will help anyone.
38.
Bruce | March 21, 2011 at 8:24 am
The source of her illegal status is unclear to me.
I found this article that states this about her illegal status: "…For any different-sex couple, simply filing the form [Form I-130, a petition for an alien relative] would excuse the spouse from any deportation proceeding before an Immigration Judge."
So it seems possible her illegal status may be due to her same-sex spouse being unable to sponsor her because of DOMA.
Congrats on your green card! Did you get it based on a same-sex spouse?
39.
Bruce | March 21, 2011 at 8:26 am
The article didn't make it: "Uniting American Love" dated 10/30/2010 on ChelseaNow (dot) com.
40.
Felyx | March 21, 2011 at 9:22 am
If hatred of LGBT, the reason for DOMA in the first place, did not exist… then the two of them would probably never have had this problem in the first place. She would easily have gone home YEARS AGO and WITHOUT fear of persecution and would have easily applied legally. The reason there is this issue at all is because of DOMA and due to fear of being persecuted in her home country.
Really, this is not nearly so simple as it seems. And no matter how hard you defend immigration and its process, it ALL smacks of heavy handed hateful discrimination!
(Plus, Lavi is not an idiot. He knows his business and he chose this case among many precisely because he feels it has the best chance of success. Anyone who differs and wants not to be argued with might due well to have extensive knowledge of the internal working of the process as well as years of experience.)
41.
Andrew | March 21, 2011 at 12:38 pm
It lists her as coming to the US 'more than 10 years' ago. Most visa's would have become permanent or even have led to citizenship by now. If they are deporting her then she has violated her original terms of entry in some way. I'm guessing deliberately, if this was a new situation she could have gone home and applied or even just filed for a green card before deportation was even on the cards.
My understanding of the USCIS is that filing form I-130 might stay any deportation, but once the application is processed its highly likely to come back with a big fat denied attached to it. Being an illegal doesn't mean they won't consider the application, but there needs to be some very compelling reasons for them to approve it.
And DOMA would prevent any same-sex based green card! I'm straight I'm afraid.
I'm not a lawyer, but I still think they are trying to build their house on sand.
42.
Richard A. Jernigan | March 21, 2011 at 12:50 pm
Let's see if I have it right here:
Gay Agenda
1) Do Laundry
Deal with imbeciles in the course of work day
2) Pack lunches for all who are eating away from home
3) Cook Breakfast
4) Wake rest of household up to eat breakfast while breakfast is still hot enough to be edible
6) Get any children of school age off to school safely
7) Get spouse off to work, or go to work
9) go home from work
10) Cook dinner
11) Do more laundry
12) Help any students in the house with homework
13) Collapse into bed
14) Wake up and repeat ad nauseum
5)
43.
Mark M (Seattle) | March 21, 2011 at 1:21 pm
You left out the destruction of society and world domination sweetie
44.
Richard A. Jernigan | March 21, 2011 at 1:57 pm
Yes, I did, didn't I? Guess I forgot all about it while I was changing out the bad deadbolt and baking a cake for Wednesday's gum paste and fondant class. Sorry about that. I will try to do better next time.
45.
Mark M (Seattle) | March 21, 2011 at 2:12 pm
Smooch
46.
Ed Cortes | March 22, 2011 at 3:08 am
GOOD NEWS!!!! http://www.advocate.com/News/Daily_News/2011/03/2…
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