The First Big Test: Will The Obama Administration’s New Deportation Rules Come in Time for Brian & Anton?

Brian & Anton will spend the next 38 days waiting for a phone call from ICE that may never come.

For the second time this year, Anton Tanumihardja, an Indonesian citizen, and his American husband, Brian Andersen, face the terrifying prospect of a deportation that will destroy their marriage. After losing a nine-year legal battle for asylum, Anton was given a “final order of removal” that may be executed on October 7.

Although this administration recently announced a “kinder, gentler” deportation policy with “prosecutorial discretion” guidelines that include same-sex binational couples, Brian & Anton will still wait anxiously for another month to learn whether this policy will be properly applied in Anton’s case.

Brian and Anton's case will be the first real test of the administration's commitment to stop deportations involving same-sex binational couples since the August 18 announcement by DHS Secretary Janet Napolitano, promising to set-aside low-priority deportation cases. It will also give us a first opportunity to confirm whether individual ICE Deportation Officers implement the LGBT-inclusive prosecutorial discretion guidelines for an individual with a final order of removal.

Unlike the two history-making cases (Henry & Josh, Doug & Alex) in which Stop The Deportations has won “administrative closure” this year, Anton’s case is significantly further along in the legal process. Anton has exhausted all his appeals and recently received a final denial of his last appeal. Because Anton has a “final order of removal” ICE has the power to put him on a plane and deport him at any time.

Will ICE Deportations and Removals Officers apply the prosecutorial discretion guidelines to protect this married gay couple from being torn apart?  As part of the Stop The Deportations campaign, Brian and Anton will use every day that remains to ensure that Anton is granted "deferred action" and to ensure that the Obama administration's commitment to same-sex binational couples facing deportation has tangible results.

Earlier this year, Brian and Anton faced the cruel coincidence of a deportation scheduled for Valentine’s Day. Anton, with his bags packed and his one-way plane ticket in hand, was prepared to follow ICE's instructions: board a plane voluntarily on February 14 or be taken into custody and forcibly deported, even though he knew that by boarding that plane he would be separated from Brian for at least ten years. Stop The Deportations, GLAAD and other LGBT groups mounted an emergency advocacy with the support of U.S. Senator Robert Casey (D-PA) and Philadelphia Congressman Robert Brady (D-PA) to raise the profile of the case and persuade ICE to reconsider the case.

Just three hours before Anton’s flight to Jakarta was scheduled to take off, ICE finally agreed to postpone the deportation. Anton was put under an order of supervision and was not held in ICE custody. At regular intervals he was required to check in with his Deportation Officer at the local Deportations and Removals Operations office of ICE.  Officially, ICE allowed Anton to stay until a final decision was made by the Board of Immigration Appeals (BIA) on a Motion to Reopen that had been filed in 2010. In fact, deportations are routinely carried out even in cases where there such motions are pending, so it seemed likely that ICE was, at least in part, responding to the specific humanitarian circumstances faced by Brian and Anton. This gave them hope that they would have a future together.

Photo by Jeff Fusco/Philadelphia Weekly

Unfortunately, in early June, Anton learned that the BIA had denied his final appeal. The couple was devastated, but they decided to go forward with their planned wedding. On June 12, Brian and Anton were married in the company of friends in Lafayette Park across the street from the White House. Brian immediately filed a marriage-based I-130 petition for Anton, joining our DOMA challenge.

On August 25, Anton went to see his Deportation Officer for his first supervised check-in since the BIA denial prepared to submit a request for "deferred action." It had only been a few days since Secretary Napolitano announced that the administration would review all pending deportation cases, including those with final orders of removal.  Still, Brian & Anton could not sleep the night before; they worried that ICE in Philadelphia would not know how to apply the prosecutorial discretion rules to gay couples.  Their fears turned out to be well-founded. The officer was kind and co-operative, but he was not sure how to proceed given that these guidelines were new.

After conferring with his supervisor for 45 minutes, the officer returned to tell them that no decision could be made on that day. He instructed Anton to return on October 7 and advised him that there was a strong chance that on that day he would informing him that he deportation would proceed.

Once again, the clock is ticking on Brian and Anton's marriage. It does not have to be this way.

Anton & Brian on their wedding day

Anton is a prime candidate for "deferred action." He has never committed a crime, he has strong ties to Philadelphia, he has close family ties to his husband, Brian, and Brian's family. He has been here for nine years and has worked hard and paid taxes.  Finally, conditions in Indonesia would make return to that country not only dangerous for Anton as a gay man who is also a member of the Chinese Christian minority, but would make it impossible for Brian to join him. Not only does Indonesia not provide for the immigration of same-sex spouses or partners of its citizens, but a conspicuous, openly gay couple like Brian and Anton would be vulnerable to abuse and harm.

Brian and Anton should not have to wait until October 7 to learn whether their lives will be torn apart.  We urge the administration to make good on their promise to exercise discretion and stop deportations that tear apart LGBT families.  The Department of Homeland Security can do this today by directing the Philadelphia ICE office to make a decision on Anton's request for deferred action now.