As we fight to stop Henry's May 6 deportation, we are facing a growing DOMA problem: the President's commitment to enforce DOMA has paradoxically made DOMA stronger.
Why is this administration, after declaring its belief that DOMA is unconstitutional, now enabling DOMA to extend its discriminatory reach?
All of us in the lesbian and gay binational couple community felt a surge of excitement when President Obama and Attorney General Eric Holder announced on February 23 that they would stop defending Section 3 of DOMA in federal court challenges. Nevertheless, Holder made it clear in a letter to Congress that the administration would continue to enforce DOMA until it is overturned by courts or repealed by Congress. In doing so, the Obama administration says, it is simply abiding by its constitutional duties, executing the laws passed by Congress.
However, the Obama administration’s commitment to enforce DOMA has had an unexpected effect. At Department of Homeland Security (DHS) agencies such as Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), DOMA seems to be growing stronger, not weaker. DOMA is morphing into something more powerful and more disturbing than a simple “marriage definition” statute. It has become Super DOMA.
The administration—guided by a political concern that they not be perceived by their opponents as ignoring DOMA—now cites the need to enforce DOMA to justify inaction for married, same-sex binational couples even in instances where DOMA does not preclude executive branch action. Just last week, DOMA was the reason given by government attorneys to avoid exercising prosecutorial discretion in Josh and Henry’s case, a context where DOMA would not even have been mentioned before February 23.
This was not the first time that executive branch remedies that could protect binational couples have been deemed out of bounds under an overly broad reading of DOMA. In March, the administration ordered USCIS to stop its “abeyance” practice (green card cases filed by married, same-sex binational couples were being put on hold and not denied). The decision to order USCIS to deny those cases was framed as “legal guidance” and blamed on DOMA. We argued that this interpretation of DOMA was wrong. Sixty members of the House and Senate and the American Immigration Lawyers Association and 81 other organizations called on the administration to restore abeyance. To be sure, DOMA does prevent USCIS from approving those cases. However, it does not prohibit them from putting those cases on hold indefinitely. So why is the administration taking this unnecessary position despite their objection to DOMA itself? This approach seems clearly designed to preemptively counter criticism from the right that this administration is in any way not fully enforcing DOMA. Binational couples in need of executive branch remedies are the victims of this overly cautious political calculus.
The latest developments in Josh and Henry’s case reveal how the creeping effect of Super DOMA results in incorrect application of law and policy and inhibits discussion of perfectly legal executive branch solutions for gay and lesbian binational couples.
Josh Vandiver and Henry Velandia have been together for more than four years and were legally married in Connecticut last summer. Henry, a professional dancer from Venezuela, was placed into removal proceedings in 2009 when his employment-based immigration case was denied. Last summer, Josh, an American citizen, filed an I-130 marriage-based green card petition for Henry. It was denied in January with the USCIS citing DOMA as the sole reason. After the President and Attorney General announced their new position on DOMA, we re-filed the petition for Henry's green card. That petition is still pending. On May 6, Henry will appear in court for a final hearing before the Immigration Judge who will decide whether he will be deported. If Henry is ordered deported to Venezuela, he will be barred from returning to the United States for 10 years.
Josh and Henry Seek Exercise of Prosecutorial Discretion to Terminate Proceedings
Faced with the near certainty that the judge will order Henry's deportation on May 6, the couple sought the co-operation of Immigration and Customs Enforcement (ICE) Chief Counsel in the Newark District office. Specifically, they reached out to ICE to reach a compromise ("an exercise of prosecutorial discretion") that would allow Henry to remain in the United States and postpone a final decision on his deportation long enough for DOMA's fate to be determined by Congress or the Supreme Court. New Jersey's two U.S. Senators, Robert Menendez and Frank Lautenberg, have expressed support for Josh and Henry’s situation. Congressman, Representative Rush Holt, has specifically called on ICE to carefully consider our request. And while ICE’s co-operation is important, the Immigration Judge will make the final decision.
ICE Denies Josh & Henry's Request to Terminate Proceedings
Last week the Chief Counsel for ICE denied our request to terminate proceedings against Henry, citing DOMA. ICE asserts that because Josh's pending petition for Henry's green card will eventually be denied because of DOMA it wouldn’t be “appropriate” to entertain our request to slow down or terminate these proceedings. But by blaming DOMA, ICE misses the point of our request. Obviously, we are aware that DOMA prevents USCIS from approving the I-130 petition. That’s why we are seeking termination on other grounds. While DOMA prevents ICE from recognizing Josh and Henry’s marriage, it doesn’t prevent ICE from looking at all their other circumstances and exercising prosecutorial discretion. This ICE office seems determined to hide behind DOMA, echoing the “must enforce” mantra coming from the President and the Attorney General. But enforcement of DOMA is irrelevant to the exercise of prosecutorial discretion. The denial by ICE is further evidence that a uniform, nation-wide policy halting these deportations is desperately needed.
Prosecutorial discretion isn’t special treatment. It is simply the process by which a law enforcement agency like ICE decides how aggressively any particular case should be pursued. ICE routinely exercises prosecutorial discretion, deciding who to deport and who to leave alone. Convicted felons, gang members, terrorists and others who pose a threat to their community or this country are at the top of the priority list. On the other hand, where humanitarian circumstances exist – such as with Josh and Henry—ICE has the power to adjourn, administratively close or even terminate proceedings altogether.
In their denial, ICE did not explain why Henry could not simply be classified as a low-priority case and put on the back burner. This is clearly a case in which Super-DOMA, given super strength by a government terrified of seeming lax on enforcement, shuts down rational consideration of any cases involving same-sex couples. In the realm of Super DOMA, an otherwise reasonable prosecutor is blinded to the reality of the situation: a loving couple will be torn apart if ICE does not agree to termination or adjournment of proceedings. Not only is this unacceptable from a humanitarian perspective, it doesn’t make sense from a legal perspective. DOMA does not dictate that federal officials must close their eyes whenever a married gay couple appears before them. It prevents recognition of their marriage. It does not prevent recognition of their humanity.
Also, ICE should be considering that Josh cannot move to Venezuela to be with Henry if this deportation is carried out. Venezuela provides no immigration rights to spouses or partners of gay Venezuelan citizens.
But rather than considering the circumstances of this case, ICE ducks behind DOMA. The administration is more concerned about keeping up appearances to avoid criticism from its opponents than it is about finding solutions for couples like Josh and Henry who face irreversible harm because of unconstitutional discrimination.
Super DOMA will become a bigger problem than DOMA itself if we allow this political interpretation of the law to take root. We must aggressively reject any false reliance on DOMA offered as an excuse by this administration to do nothing in the face of devastating irreversible harm faced by binational couples like Josh and Henry.
Click here to find out how you can help us stop the deportation of Henry Velandia and all spouses of lesbian and gay Americans.