Immigration rights for gays and lesbians -- easily the most visible issue in the current fight against the Defense of Marriage Act -- got a boost on Wednesday when a contingent of senators called for an end to deportations faced by married binational same-sex couples.
The 12 Democratic senators, who include John Kerry of Massachusetts and Kirsten Gillibrand of New York, wrote in a Wednesday letter to Atty. Gen. Eric Holder and Secretary of Homeland Security Janet Napolitano that deportations of gay spouses should be suspended.
In light of the Obama administration's February announcement that it considered DOMA to be unconstitutional, they also asked for immigration officials to suspend green card applications for such married couples where a spouse is a noncitizen -- a move that could prevent deportations until the law is repealed or settled in the courts.
"We ask the Department of Homeland Security (DHS) to hold marriage-based
immigration petitions in abeyance pending a legislative repeal or a
final determination on DOMA litigation. In addition, we ask DHS to
exercise prosecutorial discretion in commencing and prosecuting removal
proceedings against married noncitizens that would be otherwise
eligible to adjust their status to lawful permanent resident but for
DOMA," the senators wrote.
"We also call upon the Department of Justice to institute a
moratorium on orders of removal issued by the immigration courts to
married foreign nationals who would be otherwise eligible to adjust
their status to lawful permanent resident but for DOMA," they added.
The senators criticized what it characterized as the "confusion and uncertainty" from a DHS agency that only last week announced it would indeed hold such cases pending further legal guidance.
Yet two days later, the agency, Citizenship and Immigration Services, said there would be no further hold on cases involving gay married couples, after it had received instructions from Department of Homeland Security attorneys.
The letter follows what both immigration advocates and a small group of House members have requested from the administration in recent weeks regarding a reprieve from deportations for such couples.
At least one couple, Henry Velandia and Josh Vandiver, face impending deportation proceedings. Velandia, a Venezuelan citizen, married his American spouse in 2009 in Connecticut, is scheduled for a deportation hearing in May.
The full text of the letter:
Dear Mr. Attorney General and Madam Secretary:
We applaud the President's decision to no longer defend the Defense of Marriage Act (DOMA) in federal court. The law discriminates against a class of Americans, raising fundamental questions of over basic civil rights. However, the administration is still enforcing DOMA, because it is the law of the land.
Five states plus the District of Columbia, have granted same-sex couples the right to get married. With DOMA as law, however, we are creating a tier of second-class families in these states that have authorized same-sex marriage.
The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen. The new administration policy has created confusion and uncertainty in the immigration context. In recent days, the administration issued conflicting statements about how it will consider immigration petitions from same-sex married couples seeking immigration benefits for a non-citizen spouse. As of March 30, 2011, U.S. Citizenship and Immigration Services clarified that marriage-based petitions will be considered under current law, with DOMA preventing recognition of otherwise-valid and lawful same-sex marriages.
We urge you to reconsider this position in light of the administration's position that it will no longer defend DOMA in federal court. Specifically, we ask the Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation. In addition, we ask DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.
Preserving family unity is a fundamental American value and is also the cornerstone of our nation's immigration law. Thank you for your consideration of this request.
"Immigration Equality, and the families we represent, are enormously grateful to Senator Kerry and his colleagues for calling on the Administration to keep our families together. Unless USCIS changes course, real families will be impacted, and American citizens will be separated from their loved ones. Maintaining the status quo for these families will mean forcing them apart, or into exile. We call on USCIS to heed the advice of Senator Kerry, and the other signatories on today's letter, and allow these loving, committed couples to remain together."
"I am grateful for Senator Kerry's leadership and for the support of all twelve Senators who have responded to this desperate need of all gay and lesbian binational couples for interim remedies that will ensure their families are not torn apart. I applaud the courage of those couples who have raised the profile of this issue in recent months through their determination to fight for their marriages and against deportations. The administration must immediately heed the call to protect married gay and lesbian binational couples from deportation, separation and exile. It is vitally important that DOMA related deportation proceedings be terminated or adjourned, that a moratorium on removal orders be instituted and that no petitions or applications for permanent resident status filed by married gay and lesbian couples be denied because of this unconstitutional law. The Department of Homeland Security and the Department of Justice must move swiftly to develop policy in response to this letter to prevent imminent deportation in numerous pending cases."