Thursday, April 7, 2011

What Happened? The Confusion for Binational Couples

By Karen Ocamb
(cross posted with permission from LGBT POV and Frontiers in LA magazine)

Some good news on the immigration front on Tuesday. AP reports that Rep. Rush Holt (D -NJ) sent a letter to Department of Homeland Security Secretary Janet Napolitano on March 31 on behalf of a same sex couple who live in his district to stop Defense of Marriage Act deportation proceedings against the same-sex spouses of American citizens. Immigration attorney Lavi Soloway has more about it on his website, StopTheDeportations.

I asked Soloway to explain the roller coaster of recent events involving bi-national couples and what LGBTs can do to help. Here’s that story, cross-posted from Frontiers In LA:

Immigration Attorney Lavi Soloway Talks About the Confusion for Binational Couples

Lesbian and gay couples got one more blunt force example of how the federal government treats LGBT individuals differently from heterosexuals. This time it’s the impact on 36,000 same-sex couples (47 percent of whom have children) who are seeking the right for the foreign-born partner to legally stay in the country through a green card—a right afforded straight married couples automatically but denied same-sex couples because of the 1996 Defense of Marriage Act.

On March 22, an immigration judge in New York City granted a legally married lesbian couple a stay of their deportation hearing to allow them to pursue an immigration petition based on the fact that the U.S. Justice Department said they considered DOMA unconstitutional. That first of-its-kind decision was quickly followed by unrelated news that the U.S. Immigration Service was going to hold in “abeyance” green card cases for same-sex couples. But that was rescinded before the champagne bubbles fizzed out, leaving binational same-sex couples confused over what was going to happen next.

Frontiers asked immigration attorney Lavi Soloway to explain what’s going on. Here’s his explanation, and what you can do to help. He started by explaining that the case of the binational couple could have a ripple effect.

“All immigration judges live in the real world; and that is a world where discrimination against married gay and lesbian couples is increasingly rejected. Immigration judges make determinations on a case-by-case basis, but with the Department of Justice rejecting DOMA as unconstitutional and refusing to defend it in current and future federal court challenges, there is every reason for immigration judges to agree to adjourn deportation hearings to allow couples to fight for their marriages.”

How does the constitutionality of DOMA work here?

For the last 18 years, we have built a movement dedicated to ending discrimination against binational couples in our immigration system. … [But] there are now 100,000 same-sex couples married in this country, and polling shows that a majority of Americans oppose discrimination by the federal government against married gay and lesbian couples. Then, last summer DOMA was ruled unconstitutional by Judge Joseph Tauro in Boston in two separate cases.

We felt it was time to change the terms of the discussion. The president stated that DOMA was unfair, discriminatory and should be repealed. Increasingly, binational couples understood that it was DOMA that was preventing the federal government from giving them access to green cards.

This was most clear in deportation cases. Spouses of gay and lesbian Americans were being deported despite their legally valid marriages. These cases were the leading edge of a tremendous injustice, and demonstrated the ultimate and cruelest consequence of DOMA. … We decided to launch The DOMA Project and focus on halting deportations.

What happened with the U.S. Immigration Service holding green card cases in abeyance and then rescinding that?

Various District Offices of the USCIS (U.S. Citizenship and Immigration Services) were receiving alien relative petitions and green card applications from married gay and lesbian couples and, rather than issue denials because of DOMA, they were processing those cases and then holding off on the final decisions. This policy was reviewed by Department of Homeland Security attorneys in recent days and they apparently decided that denials had to go out. Regardless of what happened at USCIS—and it is not entirely clear what actually happened—we are going to continue to file alien relative petitions for spouses of U.S. citizens who are facing deportation and we are going to continue to ask judges to adjourn or postpone deportation hearings until those marriage cases have been pursued fully.

We are also going to file marriage-based petitions and applications for a small group of very carefully selected couples to create a foundation for the fight for an abeyance policy. But no one should be attempting this without expert legal counsel, as the consequences of filing such cases could include facing deportation proceedings if the foreign spouse has no other lawful status.

What can LGBTs do to help?

1. We must get those stories out there, as we have done on our DOMA Project website to educate policymakers, legislators and the general public about the extreme injustice suffered by couples who are separated, exiled or living under threat of being torn apart.

2. We must petition Department of Homeland Security Secretary Janet Napolitano for a moratorium on deportations of spouses of gay and lesbian Americans until DOMA’s fate has been decided. (She has the power to do this, as we saw in 2009 when she halted deportations of widows and widowers of U.S. citizens while a legislative fix was passed by Congress.)

3. We must demand unequivocally that the administration institute an abeyance policy so that all binational gay and lesbian couples can file green card petitions and applications based on their marriages. Despite statements to the contrary, this is possible and consistent with enforcement of DOMA. For almost all couples such an abeyance policy would secure temporary lawful status for the foreign spouse, provide much needed employment authorization and protection from deportation. Final decisions on these petitions and applications would be held until a later date, while Congress works on the repeal of DOMA and various DOMA challenges make their way to the Supreme Court. Right now we must fight for binational couples to survive from day to day and avoid being torn apart by deportation.

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