Metro Weekly

Immigration Equality Files DOMA Challenge, Obama Administration Left Them “No Choice”

Filing what she described as the organization’s “first big impact litigation,” Immigration Equality’s executive director, Rachel Tiven, tells Metro Weekly that the organization was “left with no choice but to sue” the Obama administration today in order to protect what it claims are the constitutional rights of same-sex married couples who are prohibited by the Defense of Marriage Act from receiving equal treatment in the green card application process.

Although other challenges regarding DOMA’s constitutionality have been raised in the immigration context in federal courts in both California and Illinois, Immigration Equality filed its lawsuit today in federal court in New York, claiming that “no group” is better prepared than it to win such a case.

Explaining the timing of the lawsuit, Tiven says, “Because the administration continues to say no to holding green cards in abeyance … we are left with no choice but to sue.

“We were really optimistic last year that they were going to put green card applications on hold,” she adds, but says that recently it became clear that “[t]hey really weren’t going to do it.”

immigration_equality_logo.pngOn its site, Immigration Equality states, “On April 2nd, we filed suit on behalf of five lesbian and gay couples, challenging Section 3 of DOMA, which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.”

The lawsuit, Blesch v. Holder, was filed in the U.S. District Court for the Eastern District of New York on behalf of Edwin Blesch and Timothy Smulian, Frances Herbert and Takako Ueda, Santiago Ortiz and Pablo Garcia, and Heather Morgan and Maria del Mar Verdugo. Eric Stone, a partner at Paul Weiss, signed today’s complaint.

In the lawsuit, the couples’ lawyers argue, “the five Plaintiff couples are like other married couples. They met, fell in love, and chose to build a life together. They too committed themselves to one another in good times and in bad, in sickness and in health. They have honored and kept that commitment to one another. They have chosen to be together and to make the United States their family’s home. However, because they are married to someone of the same sex, they are denied the federal immigration benefits to which different-sex married couples are entitled. They are at constant risk of being forced apart or forced to leave the United States to stay together.”

Because of this, the lawyers argue, “Section 3 of DOMA, as applied to immigration laws, is unconstitutional.”

Tiven said in a statement, “These families represent the tens of thousands of others like them who are threatened with, or have already been forced into, separation or exile. Their victory in court will end the threat that has hung over their families, their homes and their marriages for far too long.”

Lavi Soloway, an attorney who represents same-sex binational couples and started Stop the Deportations, noted that this is the third case in a year to challenge the constitutionality of Section 3 of DOMA. Of the opportunity that this challenge presents, he said, “With the filing of this court case, all pending marriage-based petitions for gay and lesbian couples should be held in abeyance while the Department of Justice argues that DOMA is unconstitutional as applied to immigration benefits.”

The Illinois case — involving Demos Revelis, a U.S. citizen, and his husband, Marcel Maas, a native of the Netherlands — has been under consideration in the U.S. District Court for the Northern District of Illinois. The judge in the case denied a motion to dismiss that case on procedural grounds in January of this year and granted the House Bipartisan Legal Advisory Group’s motion to intervene in the case to defend DOMA. BLAG, controlled by the House Republican leadership, sought to intervene after the Department of Justice had stopped defending challenges to DOMA’s constitutionality in February 2011.

As New York Law School professor Arthur Leonard wrote of the case in March, “This case thus joins pending DOMA challenges in the First Circuit Court of Appeals and district courts in Connecticut, New York, and California, but may be the first to proceed past a motion to dismiss in the immigration context.” The couple’s lawyer, Justin Burton, tells Metro Weekly that they will be responding by April 9 to a filing by BLAG seeking to dismiss the case. The Obama administration, he says, is expected to be filing a response to BLAG as well.

Back in September 2011, Metro Weekly reported on the California case, in which the Center for Human Rights and Constitutional Law brought a lawsuit on behalf of Hamdi Lui and Michael Ernest Roberts, a same-sex couple married in Massachusetts but living in California, aimed at keeping Lui — a citizen of Indonesia — in the country and keeping the couple together. BLAG, in that case, has argued that a 1982 decision from the U.S. Court of Appeals for the Ninth Circuit, Adams v. Howerton, controls in the case and prevents the couple from being recognized under immigration law. The case is ongoing.

In DOJ’s filing in Lui’s case, the administration told the court that DOJ and the Department of Homeland Security believe that longstanding judicial deference given to immigration decisions made by Congress and the executive branch should not apply to DOMA-related immigration challenges like this one. Questions about this issue, the plenary power doctrine, are likely to be raised by BLAG in defense of the law within the immigration context.

On the site, Immigration Equality appears to take aim at these other lawsuits, stating, “Our legal staff advises more LGBT immigrant families than any other organization in the country. We are the experts the experts turn to on matters impacting those families. There is no group, and no individual, better prepared to win this fight in the courts.”

Tiven tells Metro Weekly, though, that the language is simply an attempt to assure interested parties that Immigration Equality, which is established in providing individual advice to those seeking information about LGBT immigration issues, is well prepared to succeed in today’s lawsuit.

READ the Immigration Equality lawsuit complaint here.

EARLIER coverage of Immigration Equality’s litigation strategy: