December 24, 2011
By Adam Bink
What a way to spend the holidays. Burlington Free Press:
MONTPELIER – Frances Herbert and her wife, Takako Ueda, were looking forward to the New Year’s Eve family concert at the Baptist Church in their adopted hometown of Dummerston, the town fireworks on the pond and going home to celebrate the arrival of 2012.
But federal immigration authorities have told Ueda she needs to leave the United States for her native Japan by Dec. 31, a move that would split up a lesbian couple who’ve been together more than a decade and who married under Vermont law in April.
Herbert, a 51-year-old home care provider, and Ueda, a 56-year-old graphic designer, got letters Dec. 1 from U.S. Citizenship and Immigration Services, a division of the Department of Homeland Security, telling them that Ueda had to leave the country within 30 days. Ueda’s student visa expired in July. The couple had applied for “relative alien” status on the basis that she was the spouse of a U.S. citizen, but the federal agency denied that petition.
The letter to Herbert, who had applied to be Ueda’s sponsor, said that under the federal Defense of Marriage Act, the 1996 law saying the government would not recognize same-sex marriages, they couldn’t be considered spouses. DOMA defines marriage as “only a legal union between one man and one woman as husband and wife.”
“Your spouse is not a person of the opposite sex,” wrote Robert Cowan, a U.S. CIS official. “Therefore, under the DOMA, your petition must be denied.”
Federal immigration authorities demand extensive documentation showing a binational couple claiming to be married really is: witness statements, property records, utility and other household bills showing both names and the like often are required. Herbert said she and Ueda submitted 600 pages of such evidence with their application.
“It’s despicable,” Herbert said in an interview. “We had 600 pages of proof and 599 of them were completely ignored. One line on one page” — the one that said they were both women — “is what they paid attention to.”
Experts say there are not reliable numbers on how many couples find themselves in a similar situation to that of Herbert and Ueda, but it’s believed the number is small. Many binational, same-sex couples don’t seek spousal status for fear of being rejected because of DOMA.
Steve Ralls, spokesman for Immigration Equality, a nonprofit legal aid group that works on immigration and sexual orientation issues, said one San Francisco couple remained together despite getting government notices that one of the men, an Australian national, needed to leave the country, while a New Jersey man’s partner had been deported to Peru.
President Barack Obama and Attorney General Eric Holder Jr. announced in February that the administration would no longer defend DOMA in court in the cases in which it is being challenged. But for executive branch enforcement agencies like those within the Department of Homeland Security, it remains the law of the land.
“Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the Executive Branch, including DHS, will continue to enforce it unless and until Congress repeals it or there a final judicial determination that it is unconstitutional,” U.S. CIS press secretary Chris Bentley said in an email.
But Leslie Holmans, second vice president of the American Immigration Lawyers’ Association, said that even after getting the types of letters Herbert and Ueda got, some same-sex, binational couples benefit from “prosecutorial discretion” by immigration authorities.
She said many federal prosecutors believe “our systems are so overcrowded that what we really need to be doing is concentrating on people who are a risk to our country. What’s happened is that we have seen some same-sex couples go before the immigration court and ask for prosecutorial discretion.” Government lawyers often respond by “either dismissing cases or they’re not enforcing the notice of deportation.”
Holmans said the situation is far from ideal because affected immigrants are left in “legal limbo,” still without recognized immigration status and unable to get a job or seek other government benefits.
Scott Titshaw, a professor at Mercer University Law School in Georgia who has practiced immigration law and written articles on DOMA, said Ueda and Herbert most likely shouldn’t fear Ueda’s imminent arrest but “still have plenty to worry about.” He said if Ueda traveled abroad, then she might be barred from re-entering the U.S. With local authorities in some states cracking down on illegal immigrants, Ueda might also want avoid travel to places like Arizona and Alabama, both which have strict immigration laws.
Herbert and Ueda first met as students at Aquinas College in Michigan in 1980 and stayed in touch during the next couple of decades after Ueda returned to Japan and married a man. She said that when Herbert went to visit her in Japan in 1999, she made a big decision. “I had a good marriage, but there was something missing, and that something was Frances.” Eight months later, she moved to the United States, and the two had a commitment ceremony in 2000, marrying in 2011.
Question is, how is “prosecutorial discretion” exercised in the case of some couples who are given permission to stay, and in others where the ICC judge threw out the deportation case of Henry Velandia, but not with these women?