Originally published on Advocate.com October 07 2011 9:22 PM ET
A gay Indonesian man fighting to remain in the U.S. with his American husband has been denied a reprieve from deportation — a decision that appears to contradict Obama administration promises that members of same-sex binational couples can be considered lower-priority cases among the nation’s 300,000 current deportation proceedings.
During a brief Friday meeting at Immigration and Customs Enforcement’s Philadelphia office, Anton Tanumihardja, who in June married his American spouse, Brian Andersen, was denied a request for what’s known as deferred action. He was ordered to return to the local branch on January 13 for another appearance.
If the Department of Homeland Security or an immigration appeals board within the Justice Department does not intervene, immigration officers will require Tanumihardja to make travel arrangements back to Indonesia or be taken into custody and removed from the U.S. by ICE.
Lavi Soloway, the couple’s attorney and cofounder of Stop the Deportations, said he believed that the Friday decision means the administration has not implemented recently updated deportation guidelines in the field, which could have severe consequences for binational gay couples such as his clients.
“The Obama administration made a commitment to stop deportations that would tear apart families, including same-sex couples, and yet in its decision the ICE Office in Philadelphia is failing to make good on that commitment,” Soloway said. “The administration must take immediate action to ensure that the new deportation policy is being implemented fairly and consistently by ICE deportation officers in local offices, or this policy announcement is meaningless.”
On August 18, Secretary of Homeland Security Janet Napolitano announced that DHS will initiate an intra-agency working group tasked with a case-by-case review of pending deportation orders (the review has not yet begun).
A senior administration official later told reporters in a conference call that cases deemed lower-priority can include those of individuals with "strong community ties, with community contributions, and with family relationships.” That criteria is based on a June memo from ICE director John Morton to field agents and attorneys on prosecutorial discretion in deportation proceedings.
Though gay couples are denied immigration sponsorship rights under the Defense of Marriage Act, they would be included under the definition of “family,” the administration official said in August.
No written guidance on the matter has been issued since, however.
Matt Chandler, deputy press secretary for DHS, told The Advocate Friday afternoon, “The working group is currently finalizing the process for reviewing cases and will begin the review in the coming weeks. While the working group undertakes its efforts, ICE is enforcing immigration law in line with the June 2011 prosecutorial discretion memorandum from ICE director John Morton. ICE is also beginning additional training for field personnel on the proper application of prosecutorial discretion.”
But Soloway maintains that DHS should have placed an immediate hold on executing all final deportation orders until the working group begins its review.
"The problem, which DHS seems to concede, is that the June 19 prosecutorial discretion guidelines are not consistently applied by ICE officers or prosecuting attorneys," Soloway said in response to Chandler's statement. "This is patently evident from Anton and Brian's case. It is because of that lack of consistency that this working group was necessary."
Tanumihardja, 46, had fought a nine-year battle for asylum that he ultimately lost. Following intervention from LGBT advocacy groups, his deportation was postponed just hours before he was set to board a flight back to Jakarta in February.
But three months later, the Board of Immigration Appeals issued a final order of removal in his case, though one that came prior to Homeland Security's updated guidance on prioritizing deportation cases.
In June the couple married in Washington, D.C., and filed a petition for a marriage-based green card. If not for DOMA, Tanumihardja and Andersen could request that the case be reopened and remanded back to immigration court, Soloway said.
Andersen, 29, said his husband fits the criteria for what Homeland Security considers to be low-priority deportation cases. Tanumihardja has no criminal record, is legally married, has lived in the country for nearly a decade, and has strong community ties.
“It almost seems like they were written for him,” Andersen said of the guidelines. “Except [immigration officers] are not applying them. It’s very disappointing. At any given time, Anton could basically be deported. There’s really nothing keeping him here if they don’t reverse this decision.”
Update: ICE spokeswoman Barbara Gonzalez said in a statement regarding Tanumihardja's case, "ICE exercised discretion and granted Mr. Tanumihardja a stay of removal pending the decision of the motion to reopen his case. He is not in ICE custody, but is on an order of supervision."
Soloway replied late Friday:
"While we are thankful that ICE did not execute the final order of removal today, this statement does not reflect ICE's decision to deny protection to Anton beyond today's short reprieve," he wrote. "ICE has informed us that unless the Board of Immigration Appeals re-opens his case, Anton will be deported to Indonesia. By rejecting his request for deferred action, ICE has refused to provide meaningful, long-term protection for Anton and Brian despite the fact that Anton clearly meets the criteria for this relief, and despite the Obama administration's stated commitment to protecting same-sex binational couples facing deportation. ICE should reconsider its decision and grant deferred action so that Brian and Anton are not torn apart."