Acting on a motion supported by the chief counsel of the Manhattan office of US Immigration & Customs Enforcement (ICE), an Immigration Judge has closed deportation proceedings against Monica Alcota, a 36-year-old Argentinean-born immigrant who lives in Queens and married her partner of three years, Cristina Ojeda, 25, in Connecticut last year. Ojeda is an American citizen.
Immigration Judge Terry Bain’s decision was dated November 30 but announced on December 5, just one day before Alcota was due to appear before her for her next hearing.
This is the first deportation case involving a married same-sex couple that has been closed since the Department of Homeland Security announced on November 17 that a “working group” had begun reviewing all cases currently pending in the Immigration Courts.
DHS Secretary Janet Napolitano, in August, announced that the Obama administration would no longer pursue deportations against foreign nationals unless they are identified as security threats, convicted criminals, or repeat immigration law violators. In a press call at that time, an agency official emphasized that LGBT families would be considered “families” for purposes of reviewing existing cases.
However, according to Lavi Soloway, Alcota’s attorney, DHS has issued several written guidances regarding “prosecutorial discretion” since that time which have all neglected to explicitly address LGBT families.
The motion to close the case, initiated by Soloway, emphasized Alcota’s marriage to Ojeda, her ties to their community in Queens, her activism against the Defense of Marriage Act that denies their marriage federal recognition, and the lack of any adverse considerations.
The Obama administration’s refusal to defend DOMA against lawsuits and a federal district court victory over the anti-gay 1996 statute in Boston had already given advocates for same-sex binational couples a good argument for why deportation proceedings should be delayed, if not closed altogether.
After an adjourned deportation hearing earlier this year, Ojeda told Gay City News that the fear “hanging over our heads” is that “I will lose her.”
That’s exactly what happened to Ojeda –– for three months, at least –– in 2009. As the couple traveled through upstate New York, a spot border control check resulted in Alcota being detained by immigration officials. She ended up in a privately-run detention center in Elizabeth, New Jersey, from which she could have been deported at any time.
Finally, an Immigration Judge — a woman, the couple noted — saw Alcota and determined she had “a reasonable fear” of persecution should she be returned to Argentina. She had fled her home country, where she lived in a region near the Chilean border, with her then-partner because the two believed their lives were at risk.
Another client of Soloway’s, Henry Velandia, a Venezuelan immigrant living in Princeton and married to Josh Vandiver, an American citizen, was the first binational same-sex spouse to have his deportation case closed by immigration officials. That decision, made in June, was also based on prosecutorial discretion but came in advance of the DHS effort to more actively weed out low-priority cases.
