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DOMA’s lump of coal for this couple

DOMA Repeal DOMA trials

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?

21 Comments

  • 1. Franck  |  December 24, 2011 at 11:09 am

    Ah yes, DOMA sure is handing a lot of coal this year…

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1646 days, as of today.

  • 2. Carol  |  December 24, 2011 at 12:16 pm

    Prosecutorial discretion is arbitrary. What Holder should direct ICE to do is suspend deportation proceedings on the ground that the constitutionality of DOMA is uncertain, and until it is finally clarified by the courts, it would be a violation of due process to use it as the sole ground for deportation. That way, the administration takes care that the laws are faithfully executed.

  • 3. Gregory in SLC  |  December 24, 2011 at 12:22 pm

    Sorry for you Franck : (

    Love to you and everyone important to you! Gregory

  • 4. Kate  |  December 24, 2011 at 1:25 pm

    I find it very funny that on NOMblog, Brian's "Merry Christmas" article greetings from his family, with 7 kids (I think it is 7; I lost count…….) is right above the article he titled "We Can't Stop Now!"

  • 5. Gregory in SLC  |  December 24, 2011 at 1:38 pm

    LOL!

  • 6. thark  |  December 24, 2011 at 1:54 pm

    NOW you're talking, Carol!

  • 7. thark  |  December 24, 2011 at 1:55 pm

    I always wondered something Ann S.

    What does "§", mean exactly…?

  • 8. Chris in Lathrop  |  December 24, 2011 at 2:19 pm

    Where are the states'-rights Republicans on this one? 12% of states and the District of Columbia all recognize marriage equality, and all the GOP can do is, once more, prove its own hypocrisy… What was that saying about no taxation without representation? Seems like there's an addendum to that here.

  • 9. Neil  |  December 24, 2011 at 2:31 pm

    Robert Cowan is a prat.

  • 10. Brad M  |  December 24, 2011 at 3:57 pm

    The holidays are difficult times for us bi-national couples. I really feel for couples like Frances and Takako who are facing deportation because of DOMA. I'm glad that Immigration Equality and P8TT are getting the message out there. So few people are aware of the consequences DOMA holds for same-sex bi-nationals. For those of us who are already separated or living in exile, these times are also difficult. Some separated and exiled bi-national couples feel especially hopeless at these times, having to make the yearly choice between spouse and family in the US.

    One thing we can all do for all same-sex bi-national couples is to sign and share GetEQUAL's new petition calling on President Obama and the DHS to grant humanitarian parole to law-abiding individuals, like my partner, to join their families in the US for the holidays. Please take a moment to sign the petition and share with others. Happy holidays to all!

    Petition: http://org2.democracyinaction.org/o/6535/p/dia/ac

    For more info on the new Home for the Holidays campaign by GetEQUAL, Stop the Deportations and Out4Immigration, check out the most recent posts at http://www.stopthedeportations.com/blog/

  • 11. Richard  |  December 24, 2011 at 4:06 pm

    I am writing this entry from Switzerland – where I came to spend X-Mas with my husband.
    We have been shuttling ourselves between the 2 countries for the past 9 years.
    Costs : HUGE …. But – we refuse to let our homophobic countries define our relationship

    What the Obama Administration is doing is close to torture
    At least with Bush – we knew we had NO chance
    With Obama …. One day we get a positive signal, the next a SLAP on the face
    He does NOT have the gonads to just give us humanitarian Visas – which won't be a violation of DOMA
    This "arbitrary" crap-ola is just that : CRAP
    Let's see what happens – I might just vote for Santorum…no difference from Obama, honestly

  • 12. Bob Barnes  |  December 24, 2011 at 5:23 pm

    OMG, read the comments the NOMers have posted regarding lawrence v Texas, they are hysterical. The NOM blogs are a great source is entertainment. How does NOM not cringe with embarrassment?

  • 13. Guest  |  December 24, 2011 at 5:46 pm

    It means "Section" in statutes.

  • 14. Brad M  |  December 24, 2011 at 6:36 pm

    Being one half of a relatively "young" couple, I admire your persistence in your relationship with your husband, Richard. Such stories are an inspiration for me and my partner, Raul. It's hard not to be angry about how Obama has handled (or not handled) this very inhumane yet easily remedied problem. It's also easy to feel powerless in the face of his (and other politicians') glacial rate of "evolution."

    You may be right about the likelihood of DHS granting humanitarian visas, but it's important not to give in to fatalism. GetEQUAL's petition is easy to dismiss for this reason, as evidenced by a reluctance of the greater media and blogs to cover it. However, the more we share our stories and encourage others (especially allies) to DO something about it, the greater the likelihood that at least something may be accomplished or accomplished sooner rather than later. All we can do is keep trying (to the point we are able) and not give up.

  • 15. Stephen  |  December 25, 2011 at 6:04 am

    Consider hand-cuffing yourself to the White House fence, my friend….don't think Obama nor anyone for that matter cares about bi-national couples.

    You guys are trapped in HELL

    Sorry….but there are no Angels coming to your rescue

  • 16. Gregory in SLC  |  December 25, 2011 at 6:18 am

    and Ann's sophisticated way to subscribe to posts : )

  • 17. Gregory in SLC  |  December 25, 2011 at 6:24 am

    Signed!

  • 18. Gregory in SLC  |  December 25, 2011 at 6:36 am

    As 1/2 of a couple not separated yet (knock on wood) I have great empathy for couples who are torn geographically apart. However DOMA still haunts our daily lives in uncountable ways.

    A little off topic perhaps but I came across this video listed as :one of the most viewed youtube videos in Utah" (a conservative State that had much to do with getting prop8 passed). This video is admired because shows how to be "nice" to our neighbors. I was quite a bit "bah humbug" about this video until I started to ponder…. EVERY day I notice evidence more and more people locally are making the connection that being "nice" also includes not discriminating against our LGBTQQI persons. Yet much work remains. My heart and love goes out to all you separated couples! Love Gregory

    [youtube Qc8ZbVcdHpg&feature=player_embedded http://www.youtube.com/watch?v=Qc8ZbVcdHpg&feature=player_embedded youtube]

  • 19. Brad M  |  December 25, 2011 at 2:35 pm

    Thanks for the kind comment and video, Gregory. I enjoyed it. It tends to put you in a good mood! Merry Christmas to you and your family!

  • 20. James  |  January 1, 2012 at 3:22 pm

    Hell? Haha!! I think you'll be the one who's going to be trapped in HELL dude. Im not gay, but honestly people like you should just shut your mouth dude. And A lot of people cares about bi national couples that's why their fighting for that repeal.

    In time everything will be changed, and what they are doing is really unconstitutional.
    So just shut the HELL up, if you have nothing good to say other than your hypocrisy hypocrite!

  • 21. James  |  January 1, 2012 at 3:24 pm

    *care

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