Ari Ezra Waldman | DOMA | Law - Gay, LGBT

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A Nation of Laws ... to a Point

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Henry_josh Henry Velandia may be deported. His capable attorney, Lavi Soloway, has worked tirelessly to prevent that from happening, but recently ran into a brick wall. Mr. Soloway asked the Immigration and Customs Enforcement (ICE) Chief Counsel in the Newark District office to postpone any deportation proceedings until the fate of the Defense of Marriage Act (DOMA) could be decided by Congress or the Supreme Court. The ICE denied the request, saying that because Mr. Velandia's green card would eventually -- and definitely -- be denied pursuant to DOMA, it would be inappropriate to delay or terminate deportations proceedings. Mr. Soloway calls this the effect of a "Super DOMA" -- a bloated law having broad collateral effects that it should not have because the Obama Administration wants to be seen as enforcing DOMA for political reasons.

Mr. Soloway wants the ICE to exercise what is called "prosecutorial discretion" to hold off on processing Mr. Velandia's deportation. After all, DOMA does not require deportation of anyone; the eventual denial of a spousal visa pursuant to DOMA is just one in a slew of factors immigration prosecutors should consider. Mr. Soloway also notes that such discretion is routinely part of immigration law; immigration prosecutors have the power to decide whom to put at the top of the deportation list, whom to process slowly and whom to not process at all based on a litany of factors -- humanitarian, political, legal and economic, to name just a few. And, that is precisely what is wrong with immigration law. We like to call ourselves a nation of laws, not of men, a nation where no man is above the law. Yet, when it comes to immigration, we are a nation of men.

Let me be clear, I support Mr. Soloway, his tactics and his goals.

Like any attorney, I would do everything a lawyer could to keep Mr. Velandia and his husband, Josh Vandiver, together. All Mr. Soloway is doing is playing the game according to the rules, does it better than just about anyone else, and I wish him luck. Mr. Soloway and I have spoken at length about his views and this case and we agree on more than we disagree. But, let us be honest about the game we are playing. I object to the fact that such boundless discretion actually exists, for when we let men decide when to enforce a law on a whim, we make a mockery of representative democracy and become a tyranny of men.

Continued, AFTER THE JUMP...

Because Section 3 of DOMA only recognizes a marriage between one man and one women for the purposes of federal law, Mr. Vandiver cannot successfully sponsor his foreign national spouse for a marriage visa. As far as the federal government is concerned, Mr. Velandia's Connecticut marriage to Mr. Vandiver is like decaffeinated coffee -- fine if you like that sorta thing, but it really has no effect on you whatsoever. DOMA denies the couple a slew of federal benefits associated with a federally recognized marriage. One of those benefits is the chance to get a visa for a foreign national spouse.

That is the law and no one disputes that. Mr. Velandia's quest for a visa will end in failure as long as the application is processed while DOMA is on the books. But, Mr. Velandia's counsel believes that because his client is neither a criminal nor a terrorist and is an important member of his community and married to a man who cannot move to Venezuela with his deported spouse, immigration officials should stop pursuing Mr. Velandia's deportation -- basically, ignore the fact that Mr. Velandia's visa will eventually be denied under DOMA -- until Congress repeals DOMA or the Supreme Court overturns it. At that point, the visa could be processed and granted.

So, basically, Mr. Soloway wants the government to stop or delay the eventual application DOMA to Mr. Velandia until DOMA no longer exists. Only a lawyer could see that as something other than a request to stop enforcing DOMA while it's still on the books.

Unfortunately, he would be right.

DOMA no more requires the immediate deportation of Mr. Velandia any more than it requires Anderson Cooper to wear exceedingly tight black t-shirts. In fact, it does not require deportation at all. And to use DOMA as an excuse not to at least delay Mr. Velandia's deportation since he is not a priority case is an example of what Mr. Soloway is calling "Super DOMA" -- the law having a greater effect than it should based on the Administration's politically-motivated desire to be seen as complying with its executive duties to enforce duly enacted laws.

Obama Mr. Soloway is right and wrong. He is right that DOMA is having unnecessary collateral effects, but he misses why in two related ways. First, Mr. Soloway wears two hats: he is an activist and he is a lawyer; he organizes rallies and encourages grass roots involvement through his website, Stop the Deportations, and he represents clients in immigration court. Sometimes, those hats conflict. Out of a desire to gin up grass roots support against an easy target, Mr. Soloway may be too quick to conclude why the Administration is being so aggressive and misses the fact that President Obama knows that enforcing DOMA is not going to win him magical Republican support in Congress or in the polls; rather, it may be the President's deeply held commitment to his executive responsibility that moves him to comply with a law he hates. President Obama, a former constitutional scholar and teacher who came to the presidency through legislative posts, knows the importance of separation of powers, believes in the primacy of a democratically elected legislature and takes seriously his responsibility to execute the laws on the books. As he discussed in his book, Reading Obama: Dreams, Hope and the American Political Tradition, Obama scholar Professor James T. Kloppenberg agrees. President Obama is no fan of an all powerful executive and many of his first term tactics -- giving Congress power to write the health care law, seeking legislative repeal of Don't Ask, Don't Tell and so on -- prove as much. Cynicism should not always cloud our judgment when all the evidence suggests that President Obama is acting according to his ideals, not political expediency.

Second, Mr. Soloway seeks "prosecutorial discretion" without regard for the implications of the fact that such discretion is a common feature of immigration law. And, of course he should: he represents a client who is about to be deported and needs all avenues explored. Mr. Velandia wants his attorney to play the game, but the game stinks. The law may state that a foreign national who is legally married to a same-sex American citizen could never be granted a spousal visa, but immigration law is such that government attorneys are given wide latitude to determine how to process each deportation of someone without a visa. They have an endless list of factors to use to decide whom to move through the system and they do not have to explain why one applicant gets pushed to the end of the line when another gets bumped to the top.

Holt More than 60 members of Congress, led by Congressman Rush Holt (D-NJ) and Senators Frank Lautenberg (D-NJ) and Robert Menendez (D-NJ), want that discretion applied to save Mr. Velandia. It should. Mr. Velandia fits all the criteria of someone who need not be deported so soon -- he has tied to his community, he has no criminal record, he is contributing to society, his spouse cannot move to Venezuela with him. DOMA may be waiting in the wings to deny Mr. Velandia his visa, but the ICE has a plethora of factors to look at to decide whether to deport him.

But, any system of such boundless discretion is troubling. It can be abused, cheated or manipulated. And, it is unfair. If any of the social conservatives seeking the Republican nomination for president gain control of the White House, he could direct the ICE to delay deportations of devout Christians. After all, attachment to one's community through a church is a valid factor to consider when applying "prosecutorial discretion." The process also reminds me of a unique facet of military criminal justice called clemency, in which a commander has the chance to look at it the findings and sentence of a court-martial and cross out or lessen certain punishments simply because the convicted service member is a good guy, won military awards or is essential to his unit's mission, to name just a few of an unspecified list of factors. Some other factors: the commander likes the guy, they used to have drinks together, the defendant didn't mean to, the commander was in a good mood, and so on. Clemency, like prosecutorial discretion in the immigration context, is an example where rules are applied on the whims of men, rather than by the dispassionate dictates of written laws. We give similar discretion to criminal prosecutors and while their wide latitude is also troubling sometimes, it is a topic for another post.

Mr. Soloway responds that this kind of discretion is exactly how the executive branch works. Congress passes a law and the experts at, say, the Environmental Protection Agency or the Labor Department or the Department of Homeland Security write regulations that guide implementation of the intent of Congress. Indeed, he is correct. Republican and Democratic administration have promulgated countless guidelines to make the immigration process work, but what they have done is left almost boundless discretion to these prosecutors.

When we let men rise above the law, we infantilize law and subjugate most of us to the whims of the few.

Again, Mr. Soloway disagrees, stating "exercising discretion is an inherent part of executing/enforcing the law. We want the Executive Branch, whether Democratic or Republican to develop guidelines/policy that are subject to Congressional oversight (and available for all of us to see and understand) and keep us safe. That's why we applaud the emphasis on deporting those who are a threat to our safety and we understand why it made sense in 2009 for the Department of Homeland Security to put a moratorium on deportation of widows. It's not tyranny of men, it's making sure that the laws Congress pass have their intended effect." Well said, but what was Congress's intended effect on passing DOMA? In part, it was to let the federal government discriminate against same-sex couples and deny those couples the federal benefits of marriage. That includes not deporting foreign national spouses of American citizens. Executive regulations are essential to implement vague laws -- that is why, for better or for worse, most of President Obama's financial reforms will actually be written by Elizabeth Warren. But, Congess made a point of enshrining anti-gay discrimination into law with DOMA. President Obama may hate the law, but I doubt he thinks it is his job to use executive guidance to flout it.

Still, such is the game we play and in our desire to see a positive result, we should not lose sight of the fact that we want to manipulate a broken and tyrannical system for our benefit. The ICE should exercise its discretion to prevent Mr. Velandia and Mr. Vandiver from being torn apart, and my heart hopes that happens. There is no legitimate reason why two men who have committed to one another should have to be split apart. Yet, if Mr. Velandia's deportation is halted, which i hope it is, it would nevertheless be a victory for the tyranny of men over the rule of law.


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Comments

  1. What are you trying to say? What is the point of this article? You do not prove your point that the executive branch does not have prosecutorial discretion. DOMA may ultimately say that no recognition in immigration be granted to these couples, but along the way, Obama can decide to slow the process down. Previous presidents have done this. And you quibble over whether Obama is politically or constitutionally motivated. Come on, get with the game.

    Posted by: Tim | May 5, 2011 12:17:08 PM


  2. @Tim: I never suggested that the executive does not have prosecutorial discretion. in fact, many times i said it does. im just not sure that such wide discretion is such a good thing.

    Posted by: Ari Ezra Waldman | May 5, 2011 12:23:22 PM


  3. Ari is right, and this also applies in the UK. It is unsettling to those of us who work with cases like these to know that those who get campaigned for can win whereas others 'fall through the cracks'. This isn't quite Ari's argument but the end result is the same.

    Posted by: paul canning | May 5, 2011 12:49:46 PM


  4. Wow, what a convoluted mess this article is. It seems like you are saying you agree with everything Soloway is doing...but that, Gee, wouldn't it just be peachy if democratically passed laws were as clear as the laws of physics and everyone followed them to the letter and there was no need ever for actual human beings to interpret them or enforce them. Well, maybe that's how it is in law school, kid, but we live in a place called the real world. Laws are written by humans. They cannot possibly predict every nuance of every circumstance that arises. That's precisely why there are people - cops, prosecutors, judges, just to name a few - who are charged with interpreting the law (with its contradictions, loopholes and often intentional vagueness) on a case by case basis, to the best of their abilities. Have you ever been pulled over by a cop for some minor infraction who then decides to let you off with a warning? Ever heard of prosecutors who prioritize certain cases over others because they have limited resources and, maybe, think a charge of marijuana possession is not what they should be spending their time on? How about a judge who gives a lenient sentence because of a convicted person's circumstances? The human factor -- what you call the tyranny of men -- is the way the law actually is meant to work and that's fine, because grown-ups realize that law, like life, isn't one-size fits all. Your example of how this could be abused by the "other side" falls flat: what if a republican administration decided to use their discretion to delay deportations of devout Christians by pointing to church involvement as attachment to a community? Umm, yeah, what if they did? Would that really be so terrible? Would it so offend your rigid legal mind to think that a human being looked at another and decided "you know what, I have bigger fish to fry. I'm going to let you live your life while I go use my time to deport a violent criminal." I get that there can be abuse, favoritism, corruption. One need only look at widely disparate rates of conviction and incarceration for blacks and whites for similar crimes to know the system isn't perfect. But clicking your heels together and wishing we lived in a land of perfectly written and applied laws is just childish. We don't and never will. We are humans, not robots. Sorry.

    Posted by: David N | May 5, 2011 1:11:32 PM


  5. A very recent, very promising development on this front from Obama's DOJ...

    http://www.justice.gov/eoir/vll/intdec/vol25/3712.pdf

    Posted by: D | May 5, 2011 1:15:54 PM


  6. Ari,

    Thank you for being so thorough in your article. I have been very worried about the two guys facing possible separation/deportation tomorrow.

    Being someone who had to leave the US 5 years ago to stay together with my partner of 16 years, I admire these guys and Mr. Soloway for trying to take on the system and I really hope they are successful. I just do not see any judge thowing DOMA aside, especially for 2 gay men.

    I am hopeful someone else will step in and do something like the case with Shirley Tan where Senator Feinstein wrote a special bill so the mother of the two adorable twin boys would not be deported.

    Posted by: InExile | May 5, 2011 1:32:31 PM


  7. I feel very sorry for these men. But I have to say I don't understand why they seem to be SURPRISED by the legal process currently in motion. Did they really not know that the federal government does not give even legally married same-sex couples the federal benefits of marriage? Or were they simply hoping that "somehow" things would work out? Again, I feel sorry for them, but they strike me as having been almost dangerously naive about their legal status and its ramifications.

    Posted by: Sancho | May 5, 2011 1:34:50 PM


  8. Concerning your objection to the use of "disrcretion". There are literally thousands of laws in which every level of government has legal "discretion" concerning either prosecution, enforcement, or penalty. There are legal parameters within which the discretion must be exercised. There are also instances of "abuse of discretion" which may be over-ruled by a court or administrative agency. However, it would be impossible to have approximate justice in most cases if there were no "discretion" involved. it that were the case, we could have trial by computers, not judges.

    Posted by: Drake | May 5, 2011 2:12:50 PM


  9. THE WORST PART: If he is deported tomorrow, he will not be allowed to even visit the US for 10 YEARS!

    Posted by: InExile | May 5, 2011 2:28:48 PM



  10. @drake: indeed. my concern is that in the immigration context, with respect to immigration prosecutors, there are no enforced parameters.


     

    Posted by: Ari Ezra Waldman | May 5, 2011 2:34:22 PM


  11. Ari, curious then how you feel about judicial stays of enforcement -- generally, not in deportation cases. Those are cases where a judge decides that, notwithstanding his determination as to what the law requires, the possibility that a higher court might overturn that decision and the balance of equities requires that we wait and see. This is a well-accepted part of litigation. And no one, to my knowledge, sees it as a "tyranny of men." It's tempering the law with justice. And it's not unbounded discretion, there has to be a serious question about the merits and a balance of hardships that weighs in favor of the stay.

    So other than such stays are judicial, rather than executive, why is what Soloway asking for any different? The Administration has already stated -- indisputably, it seems to me -- that there are serious questions about the merits of DOMA that the courts may ultimately resolve in favor of Soloway's clients. The hardships clearly tip in favor of the stay,since allowing the couple to remain in the country rather than deporting them doesn't harm the US one bit but deporting them would severely harm the couple.

    Posted by: Glenn | May 5, 2011 2:41:10 PM


  12. @glenn: good question, but judge discretion is both qualitatively different than immigration attorney discretion and, whats more, a judges discretion is supremely limited by Congress and higher courts.

    Posted by: Ari Ezra Waldman | May 5, 2011 2:46:16 PM


  13. HEADLINE: OBAMA INC. TREATS DOMA ONE WAY & DADT ANOTHER.

    Let's cut to the chase: Mr. Waldman opines first of all NOT as someone with some training in the law [and very little training or experience in the real world] trying to write objectively but from the position of an Obambot. I challenge anyone to find me ONE essay in which he has said Obama, Inc. is wrong...whatever the issue...even when there are multiple examples to illustrate that he is...including his own contradictory behavior. [While a frequent critic of Obama, I have often acknowledged when he did something right, such as attempting to improve health care, going after Bin Laden, and inviting the late Cpl. Andrew Wilfahrt's parents to the White House Friday after earlier refusing any inclusion of families of gay troops in Mrs. Obama's project.]

    The one most relevant here is that while Obama has gotten deserved applause [louder from no one than Mr. Waldman] for FINALLY deciding that, at least in court, DOMA requires "heightened scrutiny"—Legal Speak for "you have to prove WHY you're denying rights to this individual/group you allow to others"—Obama is STILL refusing to apply that to DADT when there is NO legal precedent for the difference—save the tradition of subjugating the Constitution to whatever the Military wants.

    Just last week, the Obama DOJ filed another brief asking the appeals court NOT to enforce the District Court's ruling in the LCR case that the ban is unconstitutional and it must be stopped IMMEDIATELY—even tho Obama signed the bill to ultimately repeal it in December. Their excuse is that doing that would hurt the "orderly" repeal implementation process. TRANSLATION: we don't want to upset the homohating Troglodytes in the Pentagon by forcing them to put more than a few of their widdle toes in the repeal waters at once.

    AND they say enforcing the ruling is pointless as repeal is on its way anyway—much, conversely, as ICE is saying that "Velandia's green card would eventually—and definitely—be denied pursuant to DOMA." While a bill hasn't passed yet, given that the ODOJ tried to KILL the LCR lawsuit even before it reached court because there simply WAS legislation proposing repeal WHY can't Obama, Inc. [to whom ICE reports] take the same position here given that a DOMA repeal bill was recently introduced THAT THEY CLAIM TO SUPPORT????????

    Where's Mr. Waldman's claim to objectivity about THAT?

    Posted by: Michael@LeonardMatlovich.com | May 5, 2011 2:51:00 PM


  14. "indeed. my concern is that in the immigration context, with respect to immigration prosecutors, there are no enforced parameters."

    Uh... so you think acting like there is no wiggle room is the way to go because there SHOULDN'T be any wiggle room, even though no one else exhibits such purity of heart in ICE examinations?

    It's one thing to take the moral high road, it's another thing to follow it off a cliff.

    Posted by: BobN | May 5, 2011 2:53:53 PM



  15. @BobN: no. arguing that there is too much discretion is not the same thing as arguing there should be no discretion. with respect, i think your argument is the one that falls off the cliff.


     

    Posted by: Ari Ezra Waldman | May 5, 2011 3:02:26 PM


  16. THanks for the response Ari, but how is judicial discretion "qualitatively different"? And quite clearly, the exercise of judicial discretion in any given case is not subject to Congressional review. Congress could of course remove that discretion generally -- just as it could remove discretion from the executive branch re deportation generally.

    Posted by: Glenn | May 5, 2011 3:30:51 PM



  17. @Glenn: My apologies for the short response (it is hard to type long msgs on a bberry). A judges discretion is qualitatively different from the discretion of an executive agent, not only because of what they are applying their discretion to and their different sources of power in the Constitution and from Congress, but on their wildly different roles in our system. I grant that the standard expertise argument does not work -- just like labor officials are experts in their area, immigration officials are experts in their area. But, the individuals who can exercise prosecutorial discretion in this context are not judges, they are prosecutors, and unique ones at that, in that they fulfill administrative functions rather than purely legal ones. They are, in part, bureaucratic. As such, their discretion can and should be limited by, at a minimum, clearer guidelines from the executive. Congress need not step in.


     

    Posted by: Ari Ezra Waldman | May 5, 2011 3:41:36 PM


  18. Ari, Its encouraging to see you believe you're so knowledgeable. It seems you are just being contrary for the sake of it. Perhaps you could do this with another issue. Thanks

    Posted by: Christopher | May 6, 2011 11:03:36 AM


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