The class action is against the Departmentof Homeland Security.
A same-sex couple and their son on July 12 filed a class action suit seeking to halt deportations of immigrant families due to the anti-gay Defense of Marriage Act.
The Center for Human Rights andConstitutional Law in Los Angeles filed the federal challenge on behalf of the 25-year-old son of an immigrant from the Philippines, his mother and her U.S.spouse.
The government declined comment, standard practice for lawsuits.
The suit challenges DOMA, which defines marriage as the union of a man and a woman for federal purposes. As a result, all federal benefits based on marriage, including immigration, are denied to gay and lesbian couples.
The lawsuit is Martin Arenas, et al. v.Janet Napolitano, Secretary of the Department of Homeland Security. It says Jane DeLeon, an immigrant from the Philippines, has been living in California with her partner, a U.S. citizen, for 20 years. The women married in 2008.
DeLeon has been approved for an immigrant visa based on her employment. However, because she entered the country in 1989 using the name of her then common-law husband, to get lawful resident status she needs a waiver from the U.S. Citizenship and Immigration Service.
Such waivers are commonly available to immigrants whose deportation would cause extreme hardship to a U.S. citizen spouse, but the federal government doesn’t recognize DeLeon’s same-sex marriage. She was denied the waiver in September 2011.
DeLeon and her son Martin had temporary lawful status for several years while their visa applications were being processed, according to the suit. But when the government denied DeLeon’s waiver, she was told her status would revoked and if she did not leave the United States within 12 months she would be barred from reentry for at least 10 years.
Last year, U.S. Attorney General Eric Holder notified congressional leadership that the Obama administration determined DOMA is unconstitutional as applied to same-sex couples whose marriages are legally recognized under state law.
Holder said at the time that the Justice Department would no longer defend DOMA in court, but that it would enforce the law. Immigration cases would be reviewed on a case-by-case basis.
The class action suit argues that the administration should implement a national program placing a hold on immigration cases that involve gay marriages.
DeLeon, the complaint states, was not offered a “case-by-case” determination but instead had her temporary status automatically revoked and was told to leave the country.
Her son, in a news release, said, “I have been living in this country since I was nine years old. I have attended school here and continue to attend school while working part-time. My legalization depends on my mother’s case. After many years of having temporary legal status, I now face being in ‘illegal’ status only because my mother is in a same-sex marriage. I hope and pray that President Obama will allow me and the hundreds or thousands of children of gay married couples to continue living here with some legal protection until the courts decide whether denying our parents immigration benefits is constitutional.”
Irma Rodriguez, DeLeon’s wife, said,“For over 20 years I have loved and been in a committed relationship with Jane DeLeon, and in 2008 we were lawfully married. We have accepted all of the obligations and responsibilities that come with the blessing of marriage. It deeply saddens me that despite President Obama’s support of the rights of gay married couples, after living here for 20 years, my spouse has been told by immigration authorities that her presence here is unlawful and she must leave the country.”
DeLeon added, “Irma and I have committed to each other for the rest of our lives. We now face being forced to move to the Philippines or breaking up our family only because we are legally married women. We would face persecution in the Philippines because we are a same-sex couple, not to mention dire poverty, separation from our extended families who live here, and lack of access to medical treatment Irma needs.”
A number of lawsuits challenging DOMA are before federal courts and at least one is on appeal to the U.S. Supreme Court.