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For better or worse, deportation will have to wait.
A week ago, immigration judge Mimi Tsankov, basing her ruling on the Obama Administration’s rapidly changing immigration policy, postponed deportation hearings for Sujey Pando, a Mexican citizen whose story is as sympathetic as the judge’s ruling is problematic: Ms. Pando appears likely to have deportation proceedings against her dropped because she is married to another woman.
Ms. Pando was pulled over in 2008 for a minor traffic violation at which time the police officer determined her to be in the country illegally and handed her over to the Immigration and Customs Enforcement Agency (ICE) which jailed her for 3½ months before beginning deportation proceedings.
In 2010, Ms. Pando went to Iowa and, under Iowa’s State Supreme Court ruling which permitted gay marriage (a ruling that precipitated the removal of three of those justices in the state’s 2010 retention elections), married her girlfriend, Violeta, an American citizen who now also uses the last name Pando.
It’s hard not to have sympathy for Sujey Pando. According to her attorney, Lavi Soloway, who responded to e-mail queries for this article, she was physically and sexually abused as a child in Mexico. When she was 16 years old, her mother brought her to the U.S., but then kicked her out of their home a year later upon finding out that Sujey is a lesbian. Following that, her mother, who is a permanent resident, successfully got three of her children through the U.S. citizenship process, but excluded Sujey who is now the only non-citizen of her immediate family. She has a job, has (other than not using a turn signal) stayed on the right side of the law, and seems, based on quotes in the Denver Post article about her case, to speak English quite well. In other words, she’s a poster girl for the assimilated, employed immigrant — which is certainly one of the key reasons that attorney Soloway, a gay immigrant himself, took this case.
I asked Mr. Soloway, who is representing Ms. Pando pro bono after taking on her case just before it went to court, if he had verified any of Pando’s claims of abuse. His response in its entirety:
I was not her attorney for the past three years, but I have reviewed the file, the briefs filed by both sides, I have listened to the recorded testimony and of course I have spoken to my client about her past experiences. What Ms. Pando suffered would shock the conscience of the most skeptical person. To answer your question: irrefutable medical evidence and other evidence strongly corroborated the narrative. It was overwhelmingly corroborative, in my opinion. Unfortunately, some of the incidents of violence left lasting, physical damage to Ms. Pando. This was not a case of “gray area” as to the claims of past abuse. To call the brutality she suffered “abuse” is really to diminish what she endured. It was more like torture.
Among his “many clients in this situation,” Soloway has successfully represented two other homosexual couples, these male rather than female, in each case involving a Venezuelan man illegally in the United States who married a male American citizen (one marriage in Massachusetts, one in Connecticut). In both of these cases, just in the past month, deportation proceedings have been postponed or the deportation case dropped by the government.
But a rule of law must not routinely be trumped by sympathy, political correctness, or polling data showing the public moving away from a long-held view as, arguably, is happening regarding the issue of gay marriage in America. Nor should it be trumped by an election unless those elected change or repeal the currently controlling law.
It’s not only Soloway’s cases that have been going in this direction. In May, Attorney General Eric Holder vacated a Board of Immigration Appeals ruling against another gay man, this one a citizen of Ireland, who married an American man in New Jersey. In his ruling, Holder says that the Board must reconsider its prior ruling against Paul Dorman, considering a few factors including “whether, absent the requirements of DOMA [the federal Defense of Marriage Act], respondent’s same-sex partnership or civil union would qualify him to be considered a ‘spouse’ under the Immigration and Nationality Act.”
“Gay rights” activists, including attorney Soloway, view this as laudable prosecutorial discretion. However, allow me to propose a metaphor: Imagine we had an Attorney General who, quite unlike our current AG, was a Second Amendment absolutist. Imagine further that upon his hearing a case of a man who owned a banned “assault weapon” (the left’s term of choice for a range of semi-automatic rifles that were banned from 1994 through 2004), he asked, “Would this person be allowed to keep this weapon without penalty absent the Federal Assault Weapons Ban?” Can you imagine the outcry from liberals of all stripes? Yet that ban was at least as easy to consider unconstitutional as DOMA is.
Even considering prosecutorial discretion it is troubling for the nation’s chief prosecutor to ask a government Board to ignore a duly passed law.
Section 3 of DOMA, which defines marriage as “a legal union between one man and one woman as husband and wife,” has been deemed unconstitutional by the Obama Administration. It’s one of the few cases of this government considering the constitutionality of a law or policy. In February, the Justice Department announced it will no longer defend DOMA in court challenges against it. Perhaps not coincidentally, the administration’s most famous challenge of constitutionality — that of Arizona’s controversial SB 1070 — was also in furtherance of President Obama’s goal to unilaterally liberalize immigration policy over the wishes of Congress and states alike.
Lavi Soloway, not surprisingly, disagrees with my view that Eric Holder is going too far by ignoring federal law: “Prosecutorial discretion is not ignoring federal law, to say that is to do violence to the plain meaning of the word ignore. Law enforcement has to exercise discretion in order to enforce the law. To imagine otherwise is not a conservative value, it is anarchism.”
Instead, Soloway argues, that these cases are about law enforcement priorities. Namely, with thousands of criminal illegal aliens (by which I mean who have committed crimes beyond just being here illegally) in jail waiting to be deported, should the Justice Department be spending taxpayer money deporting people like Sujey Pando? It is a reasonable question, though not the key issue here.
Soloway again: “The government is NOT doing anything categorical. It is looking at whether deportation meets priorities for enforcing the law, and in addition to lack of adverse factors like criminal records, it’s looking for families ties and including in them LGBT families, on a case by case basis. DOMA is fully enforced. Believe me, if it were not enforced, I’d let you know.”
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