Uniting American Love
October 29, 2010
“I don’t want to be an activist,” Josh Vandiver, a 29-year-old gay man explained.
"A Harvard graduate completing his Ph.D. at Princeton, with a focus on comparative ancient Greek and Renaissance political theory, Vandiver said, 'I want to finish up my dissertation and become a professor… I’m a reclusive scholar. I like to be in the library all day.'
"Cristina Ojeda, a 24-year-old lesbian who came to the US from Mexico when she was 11 and became a citizen at the same time her father did, has more experience with LGBT causes. As an undergraduate at the University of California at Santa Cruz, she found herself amidst a politically charged student body. 'It was natural to be involved,' she said.
"Still, when Ojeda, who grew up in California, moved to Buffalo to get a master’s in social work at SUNY, she found an apartment off campus in a low-income neighborhood where she felt uneasy leading a visibly lesbian life. She pursued her degree without engaging in student or LGBT politics.
"Now, Vandiver and Ojeda find themselves called to activism — reluctantly, for sure, but also with more passion than they’ve ever had in their lives. Both are defending their right to love, not just in the abstract, but each with the person they’ve married and plan to spend their life with.
"On August 29, Vandiver married Henry Velandia, a 27-year-old salsa dancer and instructor who moved to the US from Venezuela in 2002. The couple, who met in 2006, explained that Velandia’s first attorney mishandled his green card application sponsored by his former employer, a dance school. Velandia faces a deportation hearing in late November.
"Ojeda met 35-year-old Monica Alcota, who came to the US ten years ago from Argentina, and the couple married, also in Connecticut, on August 27. Lavi Soloway, an immigration attorney who represents both couples and many others in same-sex relationships, explained that Alcota and a former partner fled their home in a region of Argentina near the Chilean border, fearing for their lives.
"Like Vandiver and Velandia, Ojeda and Alcota met online, though in their case it was a long-distance relationship initially, between Buffalo and Queens. The couple have lived together in Elmhurst since mid-2009, but next March, Alcota will go before an Immigration Judge, an official of the Justice Department, to argue against her deportation.
"Any couple would dread the prospect that one spouse might, for political reasons, be forcibly removed from their home and sent to another country. Such separation, however, is not merely hypothetical for Ojeda and Alcota. In mid-2009, out of nowhere, Alcota found herself in federal detention. It is not hyperbole to characterize the circumstances as draconian.
"When Ojeda finished up her master’s program in Buffalo, she weighed whether to find work there or in New York City; Alcota’s profession restoring antiques afforded the couple flexibility as to where they settled. Once Ojeda accepted a job in New York, the couple went to Buffalo to collect the last of her belongings, traveling by bus since Alcota lacks the documents required to fly.
"While returning to the city, their bus was stopped by the US border patrol — something that has become routine in areas adjoining Canada and Mexico. Alcota was pulled off the bus.
"Describing the ordeal as 'horrible,' Ojeda recalled asking the officials whether she should stay nearby pending Alcota’s release. She was advised to continue on to New York, a well-founded recommendation. Alcota spent the next three months in federal detention — the first few days in an upstate county jail.
"The status of Alcota’s detention was so uncertain that after Ojeda confirmed plans with the upstate jail to visit her there, she suddenly found out her partner had been transported to a privately managed federal facility in Elizabeth, New Jersey, where she spent the remainder of her incarceration.
“'I have no words to describe how I felt,' Ojeda recalled. Through two interviews, Alcota made little headway in convincing immigration officials that she feared for her safety in going back to Argentina.
“'It’s absurd,' Ojeda said. 'How does he know she is not afraid?'
"Finally, an Immigration Judge — a woman, the couple noted — saw Alcota and determined that she had 'a reasonable fear' of persecution should she be returned to Argentina.
"When Alcota next appears before an Immigration Judge, part of Soloway’s strategy will depend on demonstrating that the 'reasonable fear' justifies a grant of asylum. Argentina, which legalized marriage equality earlier this year, may not seem like a country that US officials will deem unsafe for a lesbian, but the couple and Soloway emphasize that not all of Argentina is Buenos Aires; Alcota’s home town — the sort of place 'where everybody knows your business,' in Ojeda’s words — is located all the way across the country from the capital.
“'She always had to watch how she used to be, how she used to walk, what she used to wear,' Ojeda explained.
"But, for the couple, their predicament involves a fundamental issue separate from Alcota’s fear of returning to her country of birth. As the spouse of an American citizen, she should be allowed to stay in the US, just as any heterosexual husband or wife would be able to as of right.
"That argument is integral to the legal efforts Soloway is pursuing for both couples.
“'Somebody is dictating where we can live, and it shouldn’t be that way,' Ojeda said. Then, explaining that her college activism only partially prepared her for what she is facing now, she added, 'Before, I was doing it for everybody’s sake. Now it is closer to home. I know it’s not okay what is happening to us.'
... "In staking their claim to the right to continue their lives unfettered in the US, both couples are pressing the legal sanctity of their marriages as much as any arguments about the dangers of one spouse having to leave America. Vandiver and Ojeda have each recently filed Form I-130 with the Department of Homeland Security, a petition for an alien relative, 'the spouse of USC'; the process generally take months before action is taken.
"For any different-sex couple, simply filing the form would excuse the spouse from any deportation proceeding before an Immigration Judge. Should either Velandia or Alcota go into their hearing before the I-130 is acted on, their having filed may or may not influence the Immigration Judge.
"According to Soloway, a judge could decide, before considering any asylum claim, to defer the case until the spousal claim is decided. It is, of course, likely that Homeland Security will reject both I-130s, citing the Defense of Marriage Act.
"However, because a US district judge in Massachusetts this past summer ruled that DOMA’s provision blocking federal recognition of legal marriages by same-sex couples is unconstitutional, Vandiver and Ojeda can make reasonable arguments, before an Immigration Judge or in a civil court, that the question of their marriage’s validity under immigration law is not yet a settled question.
"It’s a good bet that DOMA’s repeal is some years off, and final resolution of the Massachusetts constitutional challenge will also take more time than either couple may have. Similarly, prospects for reforming immigration law to allow foreign same-sex spouses to stay in the US on the same terms as those from different-sex couples are also uncertain — irretrievably enmeshed in the broader, culturally explosive debate.
"For now, what Soloway, Vandiver and Velandia, and Ojeda and Alcota are pressing for is a moratorium on deportation of same-sex spouses pending resolution of the DOMA and immigration issues. The pressure points for that advocacy are Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano, who report, Soloway notes, to a president who supports DOMA’s repeal.
"Both couples, their attorney, and many other couples facing the heartbreaking prospect of separation understand that time is of the essence. Vandiver and Velandia already have nearly 3,200 fans on Facebook.com/SaveOurMarriage, which they recently launched to encourage people to press their elected representatives on the issue of halting deportations. Soloway, meanwhile, maintains the site stopthedeportations.com with the same aim.
"As Congress and the courts plod along toward justice, the best hope right now for Vandiver and Velandia and Ojeda and Alcota is in the hands of the president who pledged to be their 'fierce advocate.'”
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