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DOMA Immigrant Challengers Get Temporary Respite

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Tim Smulian and Edwin Blesch, who are named in the Immigration Equality lawsuit, on their wedding day.
Tim Smulian and Edwin Blesch, who are named in the Immigration Equality lawsuit, on their wedding day.

WASHINGTON -- As long as the Defense of Marriage Act is in effect, same-sex binational couples won't be able to petition for the foreign-born partner to receive legal status. In the meantime, though, a group pushing the Obama administration to delay decisions on green card applications won a small victory last week when a judge ordered a stay on its lawsuit against the government.

Five same-sex couples, some with visas and some without, were named in the challenge against DOMA filed April 2 by advocacy group Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP. It contends that "[s]olely because of DOMA and its unconstitutional discrimination against same-sex couples, these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples."

For those couples, that means one member may be required to leave the country periodically, sometimes for six months at a time, before returning on a temporary visa. Others can't leave at all because they would have no avenue by which to return. Still others could be separated should the partner who is a foreign citizen lose a job that gives work authorization.

Binational heterosexual couples have different rights. The partner who is a U.S. citizen can apply for legal status for their foreign-born spouse even if they are undocumented, although that makes it more difficult.

The judge’s decision, which was issued Wednesday and reported to the plaintiffs Friday, does not mean the couples will be granted visas or green cards, but it does mean they will be unlikely to face separation as the stay is pending and other DOMA suits are considered. The two-sentence order declared, "[t]he case is stayed pending the Second Circuit's resolution of Windsor v. United States."

The case is part of a broader push for equal immigration rights for same-sex couples. Immigration Equality renewed its call for reform in a letter sent Friday to President Barack Obama and Attorney General Eric Holder. In the letter, which was provided to The Huffington Post, the group points out that a challenge to the Defense of Marriage Act will end up at the Supreme Court.

"We are writing now because the circumstances surrounding DOMA have changed considerably since we first raised this issue a year ago," Executive Director Rachel Tiven and Legal Director Victoria Neilson wrote. "We believe that you should therefore reconsider your prior decision not to hold green cards in abeyance."

"We ... are asking that the status quo be broadly maintained -- that the green cards for all lesbian and gay immigrant families be neither approved nor denied until there is a final resolution of the constitutionality of DOMA," they wrote.

One couple named in the suit has received at least a little relief from immigration woes, but wants a permanent solution. Tim Smulian, a citizen of South Africa, and his husband Edwin Blesch, a U.S. citizen, found out in February that Smulian could stay in the U.S. temporarily without leaving based on limits on his visa. Smulian previously lived in the United States six months on, six months off on a tourist visa. Despite that reprieve, they want full rights that will maintain that reality.

"We do see it as the beginning of the light at the end of the tunnel," Blesch said when Smulian received deportation relief in February. "We were getting pretty hopeless for a while there. This is a wonderful development for us, and it takes away the day-to-day worry every morning when we get up, 'What's going to happen now?'"

CORRECTION: 3:00 p.m. -- This article was corrected to reflect that some of the couples have visas, such as employment or tourist visas, but not green cards. It also reflects that the stay of the lawsuit means they are unlikely to be separated while the case is pending.

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