Lambda Legal to Immigration Officials: Stop Using DOMA to Discriminate Against Married Same-Sex Couples

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"The Board of Immigration Appeals should do what other immigration courts have already done - put immigration proceedings on hold until the dispute over DOMA is resolved."
July 12, 2011

(New York, July 12, 2011) - Yesterday, Lambda Legal filed an amicus brief in a case involving Cristina Ojeda and Monica Alcota, a married binational lesbian couple from Queens, New York.

The friend-of-the-court brief argues that immigration officials are incorrectly relying on an inapplicable case for authority to continue deportation proceedings while the constitutionality of the Defense of Marriage Act (DOMA) is being challenged.

"As courts chip away at DOMA, the U.S. Citizenship and Immigration Services must end discrimination in immigration law. Immigration authorities are grasping at straws, looking back 29 years to a case that is no longer applicable to find a reason to deport Ms. Alcota," said Iván Espinoza-Madrigal, Lambda Legal Staff Attorney. "The Board of Immigration Appeals should do what other immigration courts have already done - put immigration proceedings on hold until the dispute over DOMA is resolved."

Cristina Ojeda, a U.S. citizen, and her wife Monica Alcota, an immigrant from Argentina, have been together since 2008. After finishing graduate school in 2009, Ms. Ojeda found employment in New York City, and began living with Ms. Alcota. On August 27, 2010, Ms. Ojeda married Ms. Alcota in Norwalk, Connecticut. This marriage is lawful under Connecticut state law and recognized by the state of New York. In September 2010, Ms. Ojeda filed a petition requesting that Ms. Alcota be classified as the spouse of a U.S. citizen. Although Ms. Alcota is legally married to Ms. Ojeda, the U.S. Citizenship and Immigration Services (USCIS) denied the petition on May 11, 2011.

In the brief filed yesterday, Lambda Legal argues that USCIS cannot insulate itself from legal and political developments surrounding both DOMA and a 1982 case, Adams v. Howerton. Adams has been superseded by intervening legal and legislative developments including the emergence of jurisdictions where marriage or civil unions of same-sex couples are recognized, and ongoing federal court cases challenging the constitutionality of DOMA. Finally, since the law surrounding DOMA is developing, the brief urges immigration officials to administratively close or postpone all pending immigration matters involving married same-sex couples until DOMA is repealed or declared unconstitutional. Absent DOMA, there is no legal impediment to extending immigration protections to Ms. Alcota and spouses in similarly-situated same-sex couples.

In a separate matter, late yesterday, Lambda Legal, along with several other immigration, civil rights, and LGBT groups, submitted a friend-of-the-court brief to the Ninth Circuit in another immigration case (Castro-Martinez v. Holder). That brief, principally authored by the law firm of O'Melveny & Myers, asks the court to rehear an appeal denying asylum to a gay man from Mexico because the original decision improperly imposed obstacles to asylum that would wrongly deny relief to large number of LGBT people subjected to persecution in other countries.

The Matter of Alcota is handled by Lavi Soloway, Esq of Masliah & Soloway as part of the firm's pro bono Stop the Deportations - the DOMA Project.

Read the brief here

** Espinoza-Madrigal is fluent in Spanish**

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Contact Info

Contact: Jonathan Adams 212-809-8585 ext 267; jadams@lambdalegal.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

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