August 6, 2012
By Scottie Thomaston
Last week, in an important move that will impact the lives of binational same-sex couples, the Obama administration’s Department of Homeland Security issued a statement about a new policy it is implementing, ““[W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen.””
LGBT activists have been making this argument for a few years now: that the federal government has discretion over the way it carries out deportation proceedings, and if it wanted to, it could weigh an undocumented person’s marriage, even to a same-sex spouse, as a particularly important factor in whether to go ahead with the proceedings. This is an important step, but as attorney Lavi Soloway writes, there is still more to be done:
“Yesterday’s announcement acknowledging the marriages of gay and lesbian couples is a giant step forward honoring the struggle of thousands of loving couples who are subject to DOMA’s most punishing consequences. Hundreds of determined and brave binational couples who demanded an end to ‘DOMA deportations’ deserve tremendous credit for moving elected officials and the administration forward on this issue.
“Still, gay and lesbian Americans are not able to sponsor their spouses for green cards because of DOMA, depriving married couples of the right to build a future together, tearing apart families by separating spouses from each other and, in many cases, from their children.
“To address this immediate, irreparable harm, the administration should stop denying green card petitions filed by gay and lesbian binational couples and instead put those cases on hold pending a ruling by the Supreme Court on the constitutionality of DOMA expected next year. We are hopeful that the White House will follow today’s announcement with additional measures that will bring all lesbian and gay binational couples one step closer to full equality.”
And House Democratic Leader Nancy Pelosi wants the new DHS policy put into writing. The DHS has been saying similar things regarding its deportation policies for a year, and she suggests there should be a codified version of this statement:
Responding to Thursday’s report, Pelosi spokesman Drew Hammill said today, “It’s a welcome development that a DHS spokesperson is explicitly and publicly acknowledging that DHS’s consideration of family ties includes same-sex couples and spouses. We look forward to the written guidance that we expect would be a logical next step.”
… Although BuzzFeed requested a copy of any [written policy detailing DHS's current stance], the only policy to which BuzzFeed has been directed by any DHS officials is a 2011 policy that makes no mention of same-sex couples.
The request from Pelosi for a written policy is joined by 83 Democrats:
In today’s letter, Pelosi — along with Reps. Jerrold Nadler and Mike Honda, the lead sponsors of two bills aimed at addressing LGBT inequalities in the immigration system, and 81 other Democrats — called on Homeland Security Secretary Janet Napolitano to “issue a written field guidance or a memorandum to explicitly state the policy of your August 18, 2011 announcement which would direct DHS personnel to consider LGBT family ties as a positive factor for the exercise of prosecutorial discretion.”
The House members — including out gay Reps. Barney Frank, Jared Polis and David Cicilline — go on to say that “[a] written policy is the best way to ensure that the decision by President Obama and DHS to recognize LGBT family ties for immigration purposes will be implemented so that families will remain together.”
Lawmakers continue to wait for the new written policy.