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.”
I appreciate Soloway’s commitment to his cause, but
Attorney General Holder’s words and actions speak for themselves:
he says he will not defend DOMA and he requires a federal Board to
reconsider a case as if the law’s requirements simply didn’t exist.
If anything, I’d rather see the Justice Department actually mount a
challenge to DOMA if they believe it is unconstitutional instead of
simply saying, “We’re going to ignore this law.” In my
non-attorney’s view, Holder is going far beyond prosecutorial
discretion.
These cases — and I am very sympathetic to those
involved, especially to their equal protection arguments — open a
Pandora’s box, increasing the opportunity for immigration fraud and
subsequent damage to our nation such as making otherwise
non-citizens eligible for entitlement programs. This will be
particularly true if due to political correctness of a particular
government or bureaucrat a same-sex marriage is given less scrutiny
than a traditional marriage when it comes to questions of
immigration. With an administration like the one we are suffering
under now, where everything is about “victim” groups and the
politics of pitting one section of society against another, such
preferential treatment is far more likely than not.
The Justice Department’s moves in these cases of same-sex
couples are part of a larger liberalization of policy when it comes
to deportation of illegal aliens. As the New York
Times reported this week, Manuel Guerra, an illegal alien
from Mexico, had his deportation canceled by ICE, making him “one
of the first illegal immigrants in the country to see results from
a policy the Obama administration unveiled in Washington that day.
It could lead to the suspension in coming months of deportation
proceedings against tens of thousands of immigrants.”
In short, our government is aiming to focus deportations
on those who have committed crimes (other than immigration
violations) while being in the U.S. These moves are sensible from a
law enforcement resource utilization perspective but one can’t help
suspect that the administration’s real motives are political. Even
the Times article notes that “Mr. Obama had been facing
increasingly vocal protests from disappointed Latino and immigrant
groups after he made no progress in Congress on his immigration
overhaul agenda, and enforcement authorities set a modern record
for deportations, with nearly 800,000 foreigners removed in the
past two years.”
But the Guerra case and the Pando case are different,
whether Mr. Soloway likes it or not: The primary basis on which Ms.
Pando is arguing against deportation is a same-sex marriage, which
is explicitly not recognized by federal law.
As sympathetic as Sujey Pando is, and as much as I don’t
like the idea of her being forced to leave America after a claimed
brutal childhood in Mexico and 17 years becoming American in all
but passport, the slippery slope of the federal government simply
ignoring black letter law is one we should be extremely cautious
of. We are a nation of laws, not of men, and our future survival
depends on us remaining so. If people believe that what may happen
to Ms. Pando is unjust, they should endeavor through our system of
government to change the law by electing politicians who agree with
them. If there is a way to grant Ms. Pando the right to stay
without basing it on her marriage to another woman, then that
avenue should be preferentially explored by those who want to help
her.
Whether it is recognizing same-sex marriage, regulating
carbon dioxide, or boosting unions by attacking corporations, the
Obama Administration’s consistent willingness to impose through
policy and regulation what they can’t get passed through
legislation is a corrosive acid being poured daily on the
foundation of our republic. Sujey Pando is yet another pawn in
Barack Obama’s cynical games.
I understand that many will say Ms. Pando should not
benefit from having been here illegally for seventeen years despite
all that has apparently befallen her. Nevertheless I would find it
hard to look at myself in the mirror if I didn’t hope that Ms.
Pando’s efforts to stay in this country are successful, and that
she can find a way other than by Eric Holder ignoring the law or
judges legislating from the bench to remain a happy and productive
member of society. And I hope these efforts are accompanied by the
desire, followed by the ability, to become truly
American.
