By Miranda Leitsinger, MSNBC.com
A Filipino woman who married her American wife in 2008, when it was briefly legal to do so in the state of California, should not be denied immigration rights that heterosexual couples receive and should not be deported, her lawyers are arguing in a lawsuit.
Jane DeLeon, who came to the U.S. in 1989, her son, Martin Aranas, and her spouse, Irma Rodriguez, are suing the Department of Homeland Security and the U.S. Citizenship and Immigration Services, among others, for their implementation of the Defense of Marriage Act. The lawsuit was filed Thursday in U.S. District Court for the Central District of California, Western Division.
The suit joins several others targeting DOMA, the federal law banning same-sex marriages, including one filed by binational gay couples in New York. The Obama administration has asked the Supreme Court to take up two of those cases: one originating in Massachusetts and another in California, according to scotusblog.
" ... [T]the lawsuit alleges that the Administration has refused to implement a nationwide program to place same sex marriage immigration cases on hold while the courts determine DOMA's constitutionality," the Center for Human Rights and Constitutional Law, which filed the lawsuit on behalf of the family along with others, said in a statement, echoing complaints made by other same-sex marriage immigration groups.
"While the Administration has stated that it would review gay marriage cases on a 'case-by-case' individual basis, the plaintiffs claim that many immigrants cannot afford to retain lawyers to prepare the materials needed for an individualized discretionary case-by-case determination, and in any event many immigrants are afraid to come forward and expose themselves to detention or deportation," the statement continued. In this case, "DeLeon was not offered a 'case-by-case' determination but instead had her temporary status automatically revoked and was told to leave the country."
DeLeon, 47, came to the U.S. with her common-law husband. She met Rodriguez in 1992, and they have lived together ever since.
Authorities approved her employer's application for permanent resident status for her in May 2006, and she had temporary lawful status until April 2011, when immigration officials told her she was inadmissible to the country. They said she had misrepresented her name and marital status because she had entered the U.S. under the last name of her former spouse, even though they were not legally married, according to the lawsuit.
The couple attempted to get a waiver based upon the hardship that deportation would impose upon them and DeLeon's 25-year-old son, whose immigration status would also be affected if his mother was deported, but it was denied last November. Authorities, the lawsuit said, did not reject the request because the couple failed to prove the hardship claim, but solely because under the federal marriage law she was married to someone of the same sex who was not recognized as a relative.
The denial states that under DOMA, DeLeon's spouse did "not qualify as a relative for purposes of establishing hardship," the lawsuit said.
Peter Boogaard, a Department of Homeland Security spokesman, said immigration services won't comment on pending litigation.
"In general, pursuant to the attorney general's guidance, the Defense of Marriage Act remains in effect and the executive branch, including the Department of Homeland Security, will continue to enforce it unless and until Congress repeals it, or there a final judicial determination that it is unconstitutional," he said in an email.
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DOMA, enacted by Congress in 1996, blocks federal recognition of same-sex marriage, thereby denying various benefits given to heterosexual couples, such as the right to immigrate.
The lawsuit alleges that the federal marriage law denies due process and equal protection under the law in violation of the U.S. Constitution. The couple is asking the court to grant their request to give class action status to the lawsuit since their challenge affects innumerable others in their situation.
"Irma and I have committed to each other for the rest of our lives. We now face being forced to move to the Philippines or breaking up our family only because we are legally married women," DeLeon said, noting the couple could face persecution in her home country because they are lesbians. "We pray that the administration will change its mind and grant me and those similarly situated around the country the right to remain here temporarily until the courts decide whether our constitutional lawsuit has merit."
There are an estimated 36,000 binational gay couples in the U.S. Lavi Soloway, a lawyer representing same-sex couples, whose law practice - Masliah & Soloway - created Stop The Deportations: The DOMA project, said the case highlights the need to put such pending green card cases on hold until a judicial resolution has been reached.
"Thousands of gay and lesbian Americans struggle every day with the crisis of expiring visas, separation, exile, and deportation caused solely by DOMA," he said in an email. "This can end now if the Obama administration uses the power of the executive branch to implement remedies to protect our families until DOMA is gone."