DENIED: Obama Admin Immigration Decision Puts Couples in Limbo 



WASHINGTON, D.C. — The Obama administration is standing firm against calls by LGBT rights groups and lawmakers to put a blanket hold on deciding green card petitions from married, binational gay couples. Instead, those petitions in all likelihood will continue to be rejected, denying much-needed stability for gay families stuck in the nation’s immigration system.

While the administration has taken affirmative steps in recent months to ensure that foreign nationals married to American spouses of the same sex are spared from actual deportation, officials told LGBT rights groups in a recent, high-level meeting that they will not hold such marriage-based green card petitions in abeyance. The decision is being criticized by some advocates as a campaign-year calculation based on politics, not on sound legal analysis.

A year ago today, Atty. Gen. Eric Holder announced that the Obama administration would not defend a section of the Defense of Marriage Act that bars gay married couples from full federal rights and responsibilities of civil marriage. Those rights include the ability to sponsor a foreign spouse for permanent residency in the United States.

The administration has since pledged to continue enforcing the law, though it has declined to defend DOMA in multiple lawsuits and has worked around some of the 1996 law’s more severe consequences. President Obama issued a 2010 memo mandating hospital visitation rights for LGBT partners and spouses, for example, while the Justice Department dropped its opposition last year against joint bankruptcy filings by gay couples. But providing broad immigration relief to gay binational couples as DOMA’s constitutionality is decided appears to be a bridge too far at this point.

The meeting between LGBT advocates and government officials occurred January 30 at the Department of Justice in Washington, D.C. and was attended by representatives of Lambda Legal, the National Center for Lesbian Rights, the Human Rights Campaign, Immigration Equality, and Gay & Lesbian Advocates & Defenders, The Advocate has learned.

The administration in turn sent a contingent of senior officials from the White House, DOJ, and the Department of Homeland Security. According to multiple sources, those in attendance included White House LGBT liaison Gautam Raghavan, White House associate counsel to the president Kathleen Hartnett, Tony West, the assistant attorney general for the Justice Department’s civil division; and DHS executive secretary Philip McNamara, who last fall was appointed as an LGBT liaison to a Homeland Security working group reviewing the nation’s approximately 300,000 pending deportation cases.

Immigration Equality and other advocacy groups have argued for months that the administration need not reject the green card applications as part of its commitment to enforcing DOMA, which a second federal judge ruled unconstitutional in an opinion issued Wednesday. Putting the applications on hold would not grant permanent residency, but it would help individuals avoid accruing unlawful status in the country, a civil violation that can jeopardize future employment or the ability to obtain such critical legal documents as a driver’s license.

Rachel Tiven, executive director of Immigration Equality, said that despite her group’s extensive arguments as to why the administration has the power — and, given the president’s position that DOMA is indefensible, the duty — to act on behalf of binational gay couples, officials summarily rejected their request to hold green card applications in abeyance.

“We wanted to make clear to the administration that this is a priority for us, that it’s a new big ask of the LGBT community,” Tiven said of the coalition of LGBT groups at the January 30 meeting. “In many, many meetings over the past six months, with different players and different agencies, [the administration] has been quick to say, without hesitation, that our legal arguments are quite sound. So it’s frustrating to hear this idea from them that it’s basically no big deal for individuals to fall out of lawful status.”

In the January meeting, as well as in past reports submitted to the Justice Department and Homeland Security officials, LGBT advocates pointed out that agencies have put a hold on green card applications in other situations where the law is in flux. Immigration officials have even held in abeyance cases of foreign nationals who have won asylum but have had affiliations with organizations that the U.S. considers to engage in terrorist activities.

DHS spokesman Peter Boogaard confirmed to The Advocate in a Thursday email that the administration will not put on hold green card adjudications involving married, binational gay couples as a matter of policy. “Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the Executive Branch, including DHS, will continue to enforce it unless and until Congress repeals it or there is a final judicial determination that it is unconstitutional,” he wrote. Boogaard declined further explanation on the matter.

Steve Ralls, a spokesman for Immigration Equality, said of the administration’s response, “This is not about enforcement. It is about whether the president supports a legally sound, interim measure to keep these families together, or whether he believes they should be forced into legal limbo. Americans and their families, who want to follow the letter of the law should be supported, and not discouraged, in that endeavor.”

Kate Kendell, executive director of the National Center for Lesbian Rights who also attended the January meeting, agreed with Immigration Equality’s assessment. “To hold green cards in abeyance simply maintains the status quo and is not inconsistent with the administration’s decision to enforce DOMA,” she said.

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