The Public Policy

Gay Marriage Meets Immigration

For better or worse, deportation will have to wait.

By 8.26.11

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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.

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.