Frances Herbert, left, and Takako Ueda sit at their kitchen table with Ueda’s 600-plus page green card application and a series of correspondences
Frances Herbert, left, and Takako Ueda sit at their kitchen table with Ueda's 600-plus page green card application and a series of correspondences between their lawyer and the White House. Ueda, a Japanese national, is facing deportation as the federal governĀ­ment does not recognize their marriage. (Chris Bertelsen / Reformer)
Wednesday February 15, 2012

DUMMERSTON -- Vermont's congressional delegation is asking the U.S. Department of Homeland Security to reconsider a December 2011 decision to deny a spousal green card for a Japanese woman legally married to her American wife.

U.S. Sens. Patrick Leahy and Bernard Sanders and U.S. Rep. Peter Welch sent a letter to department Secretary Janet Napolitano urging Homeland Security (and its subsidiary Citizenship and Immigration Services) to re-evaluate its policy regarding marriage-based immigration petitions for same-sex spouses, particularly for Dummerston residents Frances Herbert and Takako Ueda.

The binational lesbian couple has been together for more than a decade and were legally married in Vermont last April, but the immigration agency denied the Japanese-born Ueda a spousal green card petition because their nuptials are not recognized at the federal level.

They argue that if not for the Defense of Marriage Act (DOMA) -- the Obama Administration is looking to appeal the 1996 measure -- the Herbert-Ueda petition would have been approved. Now the Green Mountain State's trio on Capitol Hill ask that the department's policy not to hold lesbian and gay spousal immigration cases like Herbert-Ueda in legal limbo, especially in states permitting same-sex marriage.

"We were deeply disappointed to learn from Ms. Herbert and Ms. Ueda that U.S. Citizenship and Immigration Services denied their spousal-based petition rather than holding it in abeyance," the congressional delegation said in a letter dated Feb. 9. "Particularly in states such as Vermont, where same-sex marriages are legally recognized, we believe that family-based cases such as Ms. Herbert's and Ms. Ueda's are deserving of full consideration of the exercise of prosecutorial discretion."

Leahy, Sanders and Welch wrote the spousal policy will force otherwise law-abiding immigrants to choose between separation from their spouse and falling out of lawful status.

Homeland Security can consider exercising prosecutorial discretion in cases where a non-citizen poses no threat to the United States, but the department has determined it will implement that choice only in cases where the immigrant has been referred to deportation proceedings. The result of this means a non-citizen like Ueda, who previously held lawful status as a student, is not considered eligible until she faces deportation and is unable to work, obtain a driver's license and could accrue unlawful presence in the country.

Roughly 36,000 American families face separation because a spouse is not qualified for citizenship, according to Immigration Equality, a New York-based nonprofit legal group focusing on immigration and sexual orientation issues.

Immigration Equality spokesman Steve Ralls said the letter is not just good news for Ueda and Herbert, but for all couples facing separation from the discriminating immigration laws.

"Sen. Leahy, Sen. Sanders and Congressman Welch are asking the administration to take a stand in favor of keeping couples together rather than tearing them apart. And it's clear that the momentum is on the side of families like Frances and Takako, and the letter underscores that lawmakers are standing with the families," he said.

Ueda was denied a green card on Dec. 1, 2011 because the Immigration Nationality Act does not specifically define the term "spouse" with respect to gender and DOMA defines marriage as a legal union between one man and one woman. At this time, the federal measure trumps Vermont law and voids the Dummerston couple's eligibility.

Democratic President Barack Obama and Attorney General Eric Holder Jr. announced in February 2011 the administration would no longer defend DOMA in court in the cases where it was challenged. Until the issue is resolved however, it remains the law.

Attempts to contact Ueda and Herbert on Valentine's Day were unsuccessful.

Ralls said Ueda remains in Vermont.

Her appeal of the Dec. 1 decision does not give her lawful protection, but Ralls said "we are confident that the administration will not pursue removal while we and the Vermont congressional delegation continue to fight on her behalf."

The couple met at a Michigan college more than 30 years ago when Ueda was studying English literature on a student visa. She returned to Japan after graduating and spent 12 years in a heterosexual marriage, periodically exchanging letters with Herbert.

Ueda divorced and left Japan to reconcile with Herbert around 1999, staying in the country by applying for student visas every semester. Now, the couple is facing their biggest challenge to date.

"Takako has been here lawfully," Herbert said last December. "We haven't done anything that is questionable under the law. She's been a student. We aren't a threat to this country and neither are thousands of other couples. We just want to be respected and live our lives and carry on without the threat of Takako being shipped back to Japan."

Chris Garofolo can be reached at cgarofolo@reformer.com or 802-254-2311 ext. 275.