Originally published on Advocate.com February 23 2012 5:33 PM ET
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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Following immigration officials’ recent denial of a Vermont couple’s green card petition, the state's congressional delegation wrote a strongly-worded letter to Secretary of Homeland Security Janet Napolitano asking the agency to reconsider its decision in the case of Frances Herbert and Takako Ueda, a Japanese national.
“[I]t is very distressing that the present decision to deny abeyance of the married-based immigration petitions in these limited situations will force otherwise law-abiding immigrations to fall out of lawful status,” Leahy wrote in a February 9 letter also signed by Vermont senator Bernard Sanders, an independent, and Rep. Peter Welch, a Democrat.
“We believe that DHS can and should exercise its prosecutorial discretion to hold this limited class of applications in abeyance,” Leahy wrote.
Herbert and Ueda, who married in Vermont last year, filed a marriage-based green card petition, known as an I-130, but received a rejection notice from U.S. Citizenship and Immigration Services in December. Ueda has juggled student visas for 11 years as the couple survives on what Herbert calls “an extremely modest income” because her wife is not eligible to work here legally.
“It’s a relief to know they’re not pursuing deportation,” Herbert said. “But it leaves Takako here with no legal status. She has no legal document to work, no ability to apply for a driver’s license ... There’s still this huge gap of uncertainty. It’s shameful in this country that just because we are the same gender, our government can deny us the most basic, fundamental rights.”
Other recent cases have seen more positive outcomes. Immigration officials have granted two married binational couples facing severe health situations what’s known as deferred action after their green card petitions had been rejected.
Significant press attention, as well as support from congressional members, were almost certainly contributing factors for both reprieves. Bradford Wells and Anthony Makk, who live in San Francisco, were granted a two-year hold on their case after Leader Pelosi advocated on the couple's behalf (Makk is an Australian citizen). In Long Island, N.Y., Tim Smulian, a South African national married to Edwin Blesch, was given a one-year deferral with the help of New York Sens. Kirsten Gillibrand and Charles Schumer, as well as New York Rep. Tim Bishop.
Last year, DHS Secretary Napolitano announced her agency would review all pending deportation cases in an effort to identify those that are high-priority (convicted felons or threats to national security, for instance) and those that are not. Cases considered to be low priority include those who have an “immediate family member” who is a U.S. citizen, and government attorneys can interpret that term to include a same-sex spouse or partner, officials have said, though no written guidance has been issued on the matter.
Most gay binational couples seeking lawful status are not in active deportation proceedings, however. And the case-by-case review has vexed advocates who argue that the best way to protect gay binational families is to hold all green card applications in abeyance until DOMA is struck down or repealed by Congress.
“Nobody has offered a legal basis as to the decision that’s been made" by the administration, said Crystal L. Williams, executive director of the American Immigration Lawyers Association. “All they’ve said is that they’re not going to [hold the green card petitions in abeyance]. So it has to be a political decision. How can they say that DOMA is legally indefensible, yet proceed to deny married couples the legal right to be together in the United States?”