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Democratic Leader Pelosi wants new DHS policy on binational married same-sex spouses put in writing

DOMA Repeal DOMA trials

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.

11 Comments

  • 1. Bob  |  August 6, 2012 at 12:09 pm

    yes put it in writing!!!!!!!!!!!!!!!!!!!! woot woot

  • 2. Butch Jerome  |  August 6, 2012 at 12:20 pm

    another step toward EQUALITY and FAIRNESS for all . . .

  • 3. Reformed  |  August 6, 2012 at 1:26 pm

    How could someone oppose this without without saying deport tthe other spouse because their marriage is only recognized in their state, but not by the federal government. One of the strongest arguments agains doma in my opinion. If a state allows a marriage, the federal government has no interest in not recognizing it. If marriage is a states rights issue, at best it should be the opposing states that discriminate, not the federal government.

  • 4. Cat  |  August 6, 2012 at 1:42 pm

    I'm glad this is moving forward. However, same-sex spouses of temporary visa holders and especially Green Card holders are still left in limbo. Green card holders are allowed to sponsor their spouse's Green Card, just like US Citizens. These new DHS rules do not seem to apply in those cases.

    Same-sex spouses (and opposite-sex spouses who are in a long-term relationship but not married) of people moving to the US temporarily for work or study can now apply for a B-2 visa (actually a tourist visa) to stay with their spouse, which is already a step forward. AFAIK there is still a hole for same-sex spouses of Green Card holders.

    Me and my wife are in this situation: we are legally married in our home country; I am a Green Card holder, and she is an international student. When her student visa runs out, she'll have to leave the US. We knew what we getting ourselves into when we moved here, but it still feels very unfair!

    The real solution is of course the fall of DOMA Section 3, and the DHS / INS / USCIS accepting same-sex marriage certificates from abroad, as they do with opposite-sex marriage certificates.

  • 5. Mike in Baltimore  |  August 6, 2012 at 4:39 pm

    Actually, the real solution will be the US Federal government (including, by definition, DHS [and ICE and USCIS, component parts of DHS]) accepting that marriage is marriage.

  • 6. Cat  |  August 6, 2012 at 8:11 pm

    I'm all for that!

  • 7. Marriage Equalty: Three N&hellip  |  August 7, 2012 at 1:49 am

    […] Obama Administration’s DHS released a statement: [W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of […]

  • 8. Marriage Equality: Three &hellip  |  August 7, 2012 at 2:46 am

    […] Obama Administration’s DHS released a statement: [W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of […]

  • 9. Rob  |  August 7, 2012 at 5:30 am

    Whilst a step forward, this does nothing for those US citizens having to live in exile purely as they cannot sponsor their same-sex partner to live in their own country. Being told that I, as a British citizen, won't be kicked out of the US is different from being told that I am welcome and entitled to the immigration rights of opposite-sex partners of US nationals.

  • 10. José Merentes  |  August 7, 2012 at 12:25 pm

    But there´s still a step forward to be done:
    Should a foreigner who seeks for asylum in USA has a same sex partner, or even children, they arenot recognized for asylum purposes as victims.

  • 11. American-in-Exile  |  August 7, 2012 at 3:21 pm

    A step forward – BUT a temporary move.
    What happens if Mitt Romney wins the election ?
    Would all those couples that got identified be now DEPORTED ?
    They are not having their status change.
    All DHS is doing is placing their deportation "on hold" – but their immigration status continues to be illegal.
    Sad…..we have an unfair and inhumane immigration policy.
    The hypocrisy of our country to dare criticize other countries for human rights abuses….and right here, in our American soil, the lives of thousands of American citizens and their spouses are played with, as if this was some sick joke….

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