Visa Lawyer Blog
Reflecting a change in deportation policy, the Obama administration has dropped its attempt to remove a member of a same-sex California couple who overstayed his visa.
The announcement in a case pending before an immigration judge in San Francisco represents the administration’s decision to put a greater focus on deporting criminals and less emphasis on removing illegal immigrants who are otherwise law-abiding and have family ties in the United States.
Families, the administration has concluded, include gay and lesbian couples.
As a result, Alex Benshimol, a Venezuelan who overstayed his visa after entering the country in 1999, will not be deported.
Benshimol, 46, runs a pet-grooming business and lives with his husband, Doug Gentry, 53, an information technology consultant, in Cathedral City (Riverside County). The couple married last year in Connecticut.
The government’s decision was “like waking up from a bad dream,” Gentry said Monday in a statement released by the couple’s lawyer. “The constant fear of exile or separation is over.”
Ending the case was consistent with the administration’s “current priorities focusing on convicted criminal aliens and those who pose a threat to public safety,” U.S. Immigration and Customs Enforcement, which is in charge of deportation policy, said Monday.
No guarantees in future
No guarantees in future
Even so, the Defense of Marriage Act prohibits Benshimol from applying for legal residency, the first step toward possible citizenship. Although his deportation case is over, a future administration could try to reinstate it.
DOMA, now being challenged in court, clouds the immigration status of thousands of others in same-sex relationships, including Anthony Makk, an Australian-born San Francisco resident whose visa is about to expire and who is the caregiver for his husband, Bradford Wells, a U.S. citizen who has AIDS.
“There is still a long fight ahead to get full equality for this couple and other couples,” Soloway said.
The lawyer, who heads an organization called Stop the Deportations, said President Obama should halt removals of same-sex spouses until the courts decide whether DOMA is constitutional. Heterosexuals can sponsor their spouses for legal immigration status, but DOMA prohibits sponsorship for same-sex spouses.
Soloway said deportation would have barred Benshimol from applying to return to the United States for 10 years and could have destroyed the marriage, because Venezuela probably would have prevented Gentry from emigrating.
Obama announced in February that he considers DOMA to be an unconstitutional act of discrimination and would no longer defend it in court. Congressional Republicans have taken over the defense in cases around the nation, including suits in San Francisco and Oakland over the denial of family insurance coverage to spouses of government employees.
Since then, immigration courts, an arm of the Justice Department, have put deportation orders of same-sex spouses on hold in a handful of cases. Last Tuesday, an immigration judge closed the deportation case of Raul Sinense, a Filipino national who lives with his husband, Peter Gee, in Oakland.
Hardship case in New Jersey
The Obama administration dropped deportation proceedings in June against another gay man, Henry Velandia of New Jersey, after Attorney General Eric Holder told immigration courts to reconsider a spousal hardship issue in a similar case.
Then on June 17, ICE’s director, John Morton, announced changes in deportation policies affecting many categories of immigrants, including same-sex spouses.
Morton said officers should focus its resources on deporting criminals and repeat violators. On Thursday, Homeland Security Secretary Janet Napolitano said her department would use the new criteria to review 300,000 pending deportation cases.
The immigration judge in Benshimol’s case, Marilyn Teeter, suspended his deportation order last month and gave ICE 60 days to decide whether to proceed. The agency’s reply, dated Aug. 11, was the first to grant relief from deportation to a same-sex spouse since Morton announced the policy change.
Soloway said Benshimol fit ICE’s declared standards: He has U.S. family ties and no criminal record, is a law-abiding member of his community, and has no remaining connections with Venezuela.
“This is not the end of the fight, but it’s a very important step along the way,” the attorney said.