An agency within the Department of Homeland Security has put on hold deportation cases for foreign nationals who are in same-sex marriages with American citizens and seeking green cards for U.S. citizenship.
In a statement, Chris Bentley, a spokesperson for U.S. Citizenship and Immigration Services, confirmed on Monday that such cases have put on abeyance until the Department of Homeland Security receives further legal guidance on handling them.
“USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct issues,” Bentley said.
Last week, Newsweek reported that the heads of two USCIS districts in D.C. and Baltimore had informed lawyers for the American Immigration Lawyers Association that cases in their districts involving married gay and lesbian couples would be put on hold.
A DHS official, who spoke on condition of anonymity, said the abeyance follows President Obama’s determination in February that the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage, is unconstitutional and the U.S. Justice Department announcement that it would no longer defense the anti-gay statute against litigation in court.
Because of DOMA, American citizens who are married to foreign spouses of the same gender cannot sponsor their spouses for U.S. citizenship — even if the couple lives in a state or jurisdiction that recognizes same-sex marriage.
Despite the new guidance, Bentley maintained USCIS hasn’t issued any change in policy and intends to continue enforcement of DOMA.
“USCIS has not implemented any change in policy and intends to follow the President’s directive to continue enforcing the law,” Bentley said.
Asked what the possible outcomes could be for the upcoming legal guidance, the DHS official replied, “All I can say is that the department’s policy direction is set by the president, but as a matter of policy we don’t comment on legal guidance until it’s final.”
The final legal guidance on the issue is expected to come down from the Department of Homeland Security’s general counsel. The DHS official said he’s hoping the guidance will be issued “imminently,” but doesn’t have a more specific time.
Steve Ralls, spokesperson for Immigration Equality, said the abeyance means that green cards applications that American citizens make for foreign same-sex spouses will be in “pending status” until the courts make a final determination on DOMA’s constitutionality.
“So they will not be denied, and while they are pending, the spouses of those that have applied for sponsorship will be able to remain in the thread, so it essentially stops the removal of anyone who has a pending application until the courts have settled the issue of DOMA’s constitutionality,” Ralls said. “It’s a temporary fix, but it’s a temporary fix that will remain in place until DOMA has made its way through the court system.”
In a statement, Rachel Tiven, executive director for Immigration Equality, called the new guidance “terrific news and a significant step forward for the families we work with.”
Earlier this month, Immigration Equality sent letters to the Justice Department and the Department of Homeland Security asking that the Obama administration put on hold the appeals of immigrant visa petitions filed by American citizens on behalf of their same-sex spouses.
“At last, after nearly two decades of work and 10,000 — and counting — couples reaching out to our legal team for help, we hope today’s news is a sign that relief is, indeed, on the way,” Tiven said.
Tiven advised couples who think they may be impacted by the announcement to contact Immigration Equality for free legal counsel on what steps would be appropriate for them.
Ralls added the number of couples who will benefit from the abeyance will in the end depend on the breadth of the ruling from the courts on DOMA.
“So it depends on whether the courts decide that both federal and state DOMAs are unconstitutional or whether just the federal DOMA is unconstitutional, so there are sort of a wide variety of possibilities in terms of who the final resolution will benefit,” Ralls said.
If the federal DOMA is struck down, Ralls noted that married bi-national same-sex couples would have the option of moving to jurisdictions that recognize marriage equality to remain together in the United States.
Christopher Nugent, who’s gay and co-chair of the American Bar Association’s rights of immigrants committee, called the news a “positive development to protect couples from unduly separated through deportation,” but said questions linger on how the immigration courts will handle the news guidance.
“For example, if somebody has already been ordered removed and then marries a U.S. citizen, is the immigration court going to grant a motion to reopen?” Nugent said.
One couple that the USCIS move could benefit is Edwin Blesch, an American citizen, and Tim Smulian, his South African spouse. The couple resides in New York state, where their marriage from South Africa is recognized by the state government. Last week, Immigration Equality filed a green card application on behalf the couple.
“Every day, we live with the very real possibility that, despite following every law and every policy of the United States, Tim will be forced to leave the country, and I will be left without my caretaker and the love of my life,” Blesch said in a statement. “Today’s news gives us great relief, and great hope that we may soon be able to put that worry behind us. For the first time, we can begin to plan the rest of our lives together without fear that we will be torn apart.”