Dueling with DOMA

Two New York attorneys have taken up arms in the battle for immigration reform and gay marriage equality.

By RENEE GHERT-ZAND
Lawyers 521 (photo credit: Klaus Enrique)
Lawyers 521
(photo credit: Klaus Enrique)
US IMMIGRATION Lawyers Noemi Masliah and Lavi Soloway are committed to fixing what they see as a broken country.
Masliah, 60, a signature blue streak permanently dyed in her graying hair, and the indefatigable Soloway, 44, who has seemingly superhuman energy levels, have recently started a “Stop the Deportations” project in order, they say, to repair the system that forces individuals to choose between love and country.
These high-profile attorneys, who are fighting to keep gay couples and families together, are prominently operating at the nexus of two of the most politically charged issues on the American public agenda: immigration reform and gay marriage equality. Their New York based firm is prominent in the US on issues affecting the unification of gay and lesbian binational couples and in handling sexual orientation and gender identity-based asylum claims.
Last summer, they decided that the time was right to launch an attack on US immigration laws and the federal Defense of Marriage Act (DOMA), in an attempt to keep binational lesbian and gay couples together. Passed in 1996, DOMA defines marriage as the legal union between one man and one woman.
Masliah and Soloway say they expect to bring a suit against agencies of the federal government within two years.
Masliah is a lesbian; Soloway is a striking handsome gay man who talks openly about having had a baby with his adopted sister, who served as a gestational surrogate. Despite their very different Jewish upbringings, Masliah and Soloway each ended up taking the biblical injunction against “oppressing the stranger” very much to heart. Both have been, they say, motivated by their own personal and family histories of persecution, displacement and otherness to develop an immigration law practice with a unique niche.
“What I was taught by my education, parents and community was the paramount importance of our families. We, as Jews, have had a long history of immigration, trials and tribulations of being thrown out of one part of the world and starting over in another,” Soloway tells The Report.
Masliah is diminutive, almost waif-like, yet hardly soft-spoken. With her miniature dog, Yofi (Hebrew for beauty) on her lap as she sits in her office’s conference room, her tone is matter- of-fact and feisty. She speaks passionately and compassionately about the plights of her clients – but there is no mistaking that Masliah is a force to be reckoned with, especially for her opponents. “I’ve always wanted to be an immigration lawyer. It’s very people-oriented, and I know how my clients feel, because I felt like a refugee when I came to the US,” she explains.
MASLIAH AND SOLOWAY were among the founders of Immigration Equality, a non-profit organization begun in 1994 to provide protection and advocacy for LGBT (lesbian, gay, bisexual, and transgender) immigrants. “When Noemi and Lavi created the organization, they committed themselves to filling a void. There were scarce resources and virtually no identifiable advocates in this area. They were pioneers and they continue to do crucial work,” Joseph Landau, an associate professor at Fordham University School of Law and the current board chairman of Immigration Equality and the Immigration Equality Action Fund, tells The Report.
Immigration Equality continues to grow in response to the legal needs of LGBT asylumseekers, although homosexuality and HIV-positive status are no longer grounds for barring individuals from entering the US. Masliah and Soloway are no longer directly involved with the organization, but in founding it, “they identified a cohort of attorneys who could represent this underserved population. Then they helped shape the legal fabric by drafting and consolidating critical materials, training other lawyers and promoting the issue generally,” Landau says.
Since US immigration rules fall under federal powers, same-sex couples are excluded from the various immigration mechanisms designed to keep families intact: Even if a same-sex couple was married in another country or in one of the few US states in which same-sex marriage is legal, the federal government does not recognize these marriages.
Therefore, the government will not allow the American citizen in a gay binational couple to sponsor his or her foreign-national spouse in a residency request.
Two judicial decisions convinced them that “the time was right to act,” explains Soloway.
The first was by District Judge Joseph Tauro in Massachusetts, in which he ruled that Section 3 of DOMA, which denied federal benefits to same-sex couples, is unconstitutional. Tauro’s opinion regarding the motive behind DOMA was the most relevant: “Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution will not permit,” the judge wrote.
In the second case, District Judge Vaughn Walker in California handed a victory to the opponents of California’s Proposition 8, which had amended the California state constitution to define marriage as being solely between a man and a woman, and ruled that it was unconstitutional under both the due process and equal protection clauses.
“THOSE CASES INSPIRED us,” Soloway asserts. He also cites public opinion polls that show public support for marriage equality at over 50 percent. “That’s a palpable change in the public discourse,” he notes, adding that he was “pleasantly surprised” to see that gay marriage was not used as a wedge-issue in the November 2 mid-term elections.
Most foreign national spouses in gay and lesbian binational couples try to stay below the radar and not call attention to themselves by having their partner apply for an I-130 Petition for Alien Relative on their behalf. They are either living according to the ticking clock of a lawful visa, or as an “overstay who fears the knock on the door,” as Soloway puts it.
For the 10 couples involved in the Stop the Deportations project, applying for residency for the foreign spouse could not make their situations any worse. Nine of the couples are married; one is engaged to be married. In some cases, the foreign partner is in the midst of deportation proceedings; in others, either the couple has been living abroad together for many years or the foreign partner is living outside the US.
“They have nothing to lose at this point,” Masliah notes grimly.
Soloway is working on individual legal strategies with each couple, but in all cases, the American spouse has filed or will be filing an I-130. “If the government acts in accordance with how it should, we expect in each case to receive a denial citing DOMA as the reason,” Soloway explains. He expects that, after exhausting the appeals process, his clients will then sue the Department of Homeland Security and the US Citizenship and Immigration Service under the equal protection clause for unconstitutionally discriminating against citizens because of their sexual orientation.
“Stop The Deportations” is at once a legal project and a public relations effort. It is Soloway who is spearheading the publicity, public education and advocacy aspect of the campaign. While both he and Masliah have been active on the national scene for years, speaking and writing on behalf of gay rights, it is the press-friendly and tech-savvy Soloway who has set up the “Stop The Deportations” website and who constantly posts links to it and other relevant news items on Facebook and Twitter. While only ten couples are involved in the legal piece of the project, many other binational couples have written up their stories and shared them on the website.
Californian Doug Gentry and his foreign national husband Alex Benshimol from Venezuela were thrilled that Soloway was willing to take their case. Benshimol feels that he has been living for 11 years in the shadows.
“It’s terrible for me, for my family and for Doug. We have no life,” he said. Gentry is incensed that he has lost basic rights he had when he was previously in a heterosexual marriage for 18 years. “Suddenly I’m a secondclass citizen in my own country,” he tells The Report in exasperation.
Josh Vandiver and his Venezuelan husband Henry Velandia, who is facing deportation, live in Princeton, New Jersey. They tell The Report that they feel confident about joining Masliah and Soloway’s project because “Lavi’s personal story is a model and inspiration,” says Vandiver.
MASLIAH’S DISTINCTACCENT reveals that she is an immigrant to the US. Traces of all the places she has lived and all the languages she knows echo through her voice.
Her parents met as young adults in France during the war, south of the Vichy line, after both their families had fled Paris. Her father’s family had immigrated to France from Turkey and her mother’s family moved there in 1932 from Berlin. Toward the end of the war, her mother was sent to Switzerland and her father was in the French resistance. In 1948, they moved to Cuba to join relatives. Masliah was born in Cuba in 1950.
In Cuba, Masliah’s father was set up in the jewelry business by those relatives. The attorney recalls living a comfortable, middle class life there. “The idea of a God ended with the war for my father,” she states. In 1960, she, her parents and her younger sister arrived in New York, leaving Cuba “because my father’s brand of Communism was not the same brand as Castro’s.” But after only a few months, her father followed a business prospect to Lima, Peru. The family joined him soon after, only to decide after a few months that, in the end, New York was probably the best place to settle. “I did 5th grade in four places – Cuba, Boston, Lima and New York,” she recalls.
Masliah attended Queens College and decided to do her senior year in Paris, where she stayed for several years following graduation.
“I stayed there doing this and that, and it was in Paris that I came out [as a lesbian],” she tells The Report. She never really ever came out to her parents, however. “But they knew, they definitely knew,” she says.
She attended the Yeshiva University Cardozo School of Law, graduating in its first class in 1979 and then joined a small immigration law firm. “Today law schools have clinics in immigration law, but in those days, immigration law was seen as something unsavory,” she reflects. Masliah struck out on her own as a solo practitioner in 1985, at which time she also began to get involved in pro-bono and advocacy work in the LGBT community, in particular with Lamda Legal, the oldest and largest legal organization working for the civil rights of gays, lesbians and HIV-positive individuals.
Currently single, Masliah was involved in the past in a long-term lesbian domestic partnership.
It was only in the last couple of years, before her father died last January, that she and her parents began attending Passover Seders and Kol Nidre services together as a family.
Masliah has served on several key committees at Congregation Beit Simchat Torah, Manhattan’s LGBT synagogue, where she has been a longtime member.
Rabbi Sharon Kleinbaum, leader of the congregation, officiated at Masliah’s father’s funeral last year. “All of the remaining survivors of his partisan group came,” she recalls.
“They clearly remained a family over all these years,” she observes, highlighting the notion that for the Masliahs, blood ties are not the only ones that matter.
IT IS DIFFICULT TO PIN DOWN LAVI Soloway, always on the move, for an interview. Given his busy schedule and heavy bi-coastal travel routine, it was necessary to speak with him by phone in spurts – once while he was sitting in his Los Angeles office, another time while he was driving his car, and yet another in his New York office.
Soloway was adopted as an infant in Toronto by older parents, who went on to adopt another son and a daughter. His distinctive first name is often mistakenly pronounced as “Lahvy,” like the currently popular Israeli name meaning “lion.” In fact, it is a misspelling of the traditional Jewish name, “Levi.”
Soloway attended Jewish day schools from kindergarten through the end of high school.
After receiving a BA from the University of Toronto, he moved to New York to attend the Cardozo School of Law.
In 1992, as his student visa was about to expire, Soloway came to Masliah as a client seeking legal advice on how to stay in the US.
“We joke that Lavi came for a consultation and never left,” Masliah laughs. Indeed, it did not take long after Soloway joined the firm as an associate to establish that the fit was a good one.
While Masliah grew up in a very secular home, Soloway had a very different upbringing in the bosom of the modern-Orthodox community in Toronto. “I grew up in a Jewish bubble,” he said. At first, “I took a lot of comfort in knowing I had this world, this shtetl, ingrained in me.” It gave him, he says, a strong sense of identity and the knowledge that he belonged to a community and a people, both of which helped ground him as he later faced personal challenges. By the 1990s he had begun to think about the fact that his grandfather’s immigration to Canada before World War II had saved him from the fate of the rest of his entire family that had remained behind in Europe.
He traveled to Europe in search of familyrelated sites and was astounded to discover that the family of one of his grandfather’s siblings had survived the Holocaust and immigrated to Israel, continuing a branch of the family that he and his parents had never known existed.
Soloway visited his newly discovered relatives in Israel after he and his Israeli cousin Omer, also a genealogy enthusiast, discovered one another.
Soloway can be seen at rallies and protests for immigration rights and gay rights with his husband, Sebastian, and young daughter, Lily. Soloway has been living in Los Angeles and commuting to New York as needed since marrying Sebastian, an independent film producer, in Toronto, in 2009. It was before his meeting Sebastian that Soloway became a single father.
“Nothing can be more funny than telling your parents that you are having a baby with your sister,” he jokes. Yet his traditional parents, who had observed a “don’t ask, don’t tell” policy in regards to Soloway’s sexual orientation, were supportive of Soloway’s plans to become a parent with the assistance of his adoptive sister, who agreed to carry the pregnancy resulting from the IVF fertilization of donor eggs by Soloway’s sperm.
Twin girls were born in 2007, but one died in the neonatal intensive care unit in Toronto; named Pearl for Soloway’s mother, who had passed away less than a year before the girls were born, she was buried together with her grandmother in the same grave.
Masliah believes her convictions come from a very Jewish place. “Jews should be welcoming.
We were ejected for centuries and centuries.
We cannot be like our enemies. We cannot be like the people who have oppressed us for so long. I believe in tikkun olam. We have to repair the world. It is so broken, and we can’t be part of what’s continuing to break it. We have to have a conscience and the will to put it together. It can’t be meant to be so broken,” she passionately declares.
Soloway, too, sees “an absolute connection” between his Jewishness and his family’s immigrant legacy and the choices he has made in his personal and professional lives, in particular his work on behalf of asylum seekers. “My grandparents left a place where they had no future because they were Jewish…When I stood in that forest where my grandparents’ family was gunned down by the Nazis on August 23, 1941, I decided that in my everyday life I would help people not end up in that forest.”