Gay Binational Couples Fighting Deportations On Obama's New DOMA Stance

​Gay couples are already using President Obama's new stance against the Defense of Marriage Act as a weapon to fight deportations of their foreign spouses. The couples hope that the administration's declaration last week that the law that defines marriage as only between a man and a woman is unconstitutional will help defer or ultimately save the foreign half of the couple from deportation.

As we wrote in a cover story last year "Worlds Apart," gay couples in which one partner is a U.S. citizen and the other an illegal immigrant, have always been locked in a legal impasse. While marrying a U.S. citizen is usually the most expedient way for straight illegal immigrants to get a green card, gay couples have no such remedy because of DOMA.

Starting last summer, the New York and Los Angeles-based Masliah & Soloway law firm, which specializes in gay immigration issues, decided to turn from advocacy to direct action, says attorney Lavi Soloway. (Soloway was one of the founders of Immigration Equality, a non-profit that focuses on gay immigration issues.)

Based on the Proposition 8 ruling in San Francisco and a Massachusetts judge declaring DOMA unconstitutional, the firm decided to challenge the current immigration laws around foreign gay spouses.

The attorneys took on pending deportation cases of a handful of undocumented immigrants, who, if in straight marriage instead of same-sex ones, would be eligible for a spouse visa. The U.S. citizens in the couples submitted petitions to sponsor the immigrants as a straight spouse would.

Additionally, the firm filed fiance visa petitions for two gay foreigners currently living abroad in order to be with their U.S. citizen partner. For straight couples, fiance visas allow the foreigner to travel to the United States to marry an American.

One of the couples -- a Venezuelan immigrant who has an American spouse and a  deportation order -- lives in Cathedral City, Calif. The Venezuelan is set to have a hearing in San Francisco immigration court in July when Soloway will be arguing that the court must change its outlook due to the Obama administration position.

"[DOMA] remains a law on the books," Soloway says. "So at this moment we cannot expect lesbian or gay couples to...receive a green card. But we can expect the U.S. government to look for an innovative solution to make sure it's not prematurely deporting people eligible for a green car because of DOMA, which they've called unconstitutional."

Soloway emphasizes that the government is consistently making decisions about who it will prioritize for deportations. For example, when the DREAM Act was pending, immigration judges put aside many of the pending deportations of students who would be eligible for relief under the law, should it have passed, he says.

Soloway says immigration judges can do the same to put deportations on hold until Congress repeals DOMA or the Supreme Court rules it as unconstitutional. If DOMA is repealed, Soloway says no other change is needed in immigration law to allow gay Americans to sponsor their foreign spouse.

"They don't have to change a word of the Immigration and Naturalization Act," Soloway said.

He says the only obstacle then will be gay couples will have to travel to the few states that allow gay marriages to get hitched. Maybe it doesn't sound like a big deal -- unless you live in Honolulu or Anchorage.

Update: Gay binational couples are planning a lawsuit to challenge the constitutionality of DOMA.

Follow us on Twitter at @SFWeekly and @TheSnitchSF