Though the Obama administration maintains that gay binational couples in deportation situations will not be separated because of an antigay law that the president has declared to be unconstitutional, the issue remains anything but black-and-white, to the renewed frustration of LGBT immigration advocates and their Capitol Hill allies.
In written guidance released Thursday to Immigration and Customs Enforcement attorneys, officials set forth detailed criteria to be considered as it conducts a review of some 300,000 deportations pending in the nation's inundated immigration system. But they did not explicitly mention LGBT families, who are barred from equal immigration sponsorship privileges under the Defense of Marriage Act.
That such a specific list of circumstances did not include a mention of gay binational couples drew consternation from Rep. Jerrold Nadler of New York, the lead sponsor of a House bill to repeal DOMA.
"Without such a directive in writing, there is a serious risk that such families could be wrongfully divided," Nadler said in a statement to The Advocate. "With the administration taking an otherwise positive step to make immigration enforcement fairer, it is extremely frustrating that families of LGBT binational couples remain at risk."
In the case-by-case review, attorneys were instructed to consider high priority cases of individuals who have been convicted of violent crimes as well as those who have gang ties or who pose a national security risk.
On the other end of the spectrum, individuals who could see their cases administratively closed or terminated include members of the armed forces, children who have been in the country for more than five years, or those who have a "very long-term presence in the United States" -- factors that add to previous discretionary guidelines issued by ICE director John Morton in a June 17 memo. The new guidance was first reported by The New York Times.
Administration officials said Thursday that the guidance language issued had been carefully crafted to be inclusive of gay couples: Cases that are not considered high priority include those who have an "immediate family member" who is a U.S. citizen, they said, and government attorneys can interpret that term to include a same-sex spouse or partner.
A nationwide training program for agents and attorneys will specifically address cases of LGBT binational couples, though it's unknown exactly how the issue will be handled in upcoming on-the-ground sessions (all ICE agents must complete the training by mid January). Officials had also named an LGBT liaison, Homeland Security executive secretary Philip A. McNamara, to the deportation working group.
Though the new criteria does not supersede nor replace the June 17 memo, Lavi Soloway, an immigration attorney and cofounder of Stop the Deportations who has represented multiple binational couples in deportation proceedings this year, called the guidance "confusing and lopsided" because it offers significantly more detail on some issues -- listing misdemeanor convictions that could be considered, for example -- yet omits the Morton memo's more inclusive "family relationships" language.
Guidance that would allow ICE attorneys to respect marriages of lesbian and gay binational couples was also absent, Soloway noted. "Terminology like 'immediate family member' is more likely to confuse ICE attorneys because it parallels the phrasing 'immediate relative,' which will mean to most that weight will be given to those cases involving spouses of U.S. citizens," he said. "The administration may be trying to help broaden protection for LGBT families, but they are doing so in a way that relies on ICE attorneys to read between the lines and guess at their intention."
Nadler isn't the only congressman who has urged clear guidance on the matter. Earlier this fall, the New York representative, along with House minority leader Nancy Pelosi and 67 Democratic colleagues, called on Secretary of Homeland Security Janet Napolitano to put prosecutorial discretion guidelines related to LGBTs in writing.
Napolitano responded late last month and assured the group that "LGBT individuals' ties and contributions to the community are taken into account" as ICE conducts its review.
But administration officials may have deemed written policy on the matter to be either a potential conflict with DOMA or too politically risky (or both). Critics have already charged that the program amounts to "backdoor amnesty."
Steve Ralls, spokesman for Immigration Equality, called the working group review welcome progress as DHS takes steps to "stop the waste of government resources that have been spent on separating American citizens from their spouses and partners." But the policy issued Thursday "seems to take us from 'don't ask, don't tell' to 'tell, don't write,'" he said.
"It leaves too much room for interpretation and uneven application of discretion," Ralls said. "That, in turn, leaves too many LGBT families vulnerable to separation, despite even the best intentions of the administration."
Representative Nadler's full statement:
"I am very concerned by the Administration's failure to state in its written Guidance to ICE attorneys, released today, that families of LGBT binational couples should be treated equally, like all other families in America. While I appreciate prior commitments by DHS that LGBT family ties will be taken into account in immigration enforcement decisions -- and that this will be explained to ICE agents -- without such a directive in writing, there is a serious risk that such families could be wrongfully divided. With the Administration taking an otherwise positive step to make immigration enforcement fairer, it is extremely frustrating that families of LGBT binational couples remain at risk. I will be working to ensure that those families are also protected."
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