April 16, 2011 | by Chris Johnson
Another shot for UAFA in House, Senate

Rep. Jerrold Nadler (D-N.Y.) reintroduced UAFA on Thursday (Blade photo by Michael Key)

Lawmakers initiated on Thursday a two-pronged approach to stop the separation of bi-national same-sex couples in the United States by introducing legislation and sending a letter to the Obama administration urging executive action.

Rep. Jerrold Nadler (D-N.Y.) reintroduced in the House the Uniting American Families Act, which would enable gay Americans to sponsor their foreign partners for residency in the United States, while Sen. Patrick Leahy (D-Vt.) reintroduced companion legislation in the Senate.

Meanwhile, Rep. Zoe Lofgren (D-Calif.), ranking Democrat of the House Judiciary subcommittee on immigration, sent a letter to the Justice Department and the Department of Homeland Security — along with 47 other U.S. House members — urging administration officials to stop the deportations of foreigners in legally recognized same-sex marriages in the United States.

During a news conference Thursday, Nadler touted his newly reintroduced legislation, which has been languishing in Congress in various versions for more than a decade, as a means to “remove a wantonly discriminatory policy” in U.S. immigration code.

“Today, thousands of committed same-sex couples are needlessly suffering because of unequal treatment under our immigration laws, and this is an outrage,” Nadler said. “The Constitution guarantees that no class of single people will be singled out for differential and invidious treatment — and LGBT Americans should not, and must not, be excluded from that guarantee.”

In a statement, Leahy said UAFA is necessary because a key tenet of U.S. immigration policy is maintaining “family unity” — even for LGBT people — whom he said are often forced to choose between the country they love and the person they love.

“I hear from Vermont couples who face this difficult decision every year,” Leahy said. “No American should face such a choice. I hope that my colleagues who supported this important civil rights reform will join me in calling for fairness and equality in our immigration laws.”

Under current immigration code, straight Americans can sponsor their spouses for residency in the United States through the green card application process if their spouses are foreign nationals. The same rights aren’t available to gay Americans because they cannot marry in many places in the United States. Even where gay nuptials are recognized, Americans can’t sponsor their same-sex spouses for citizenship because the Defense of Marriage Act prohibits federal recognition of marriage equality.

Consequently, foreign nationals who are in committed relationships with gay Americans may have to leave the country upon expiration of their temporary visas or face deportation.

“It’s not only the partners in committed relationships that suffer, it’s their children, their extended families,” Nadler said. “Their communities and employers are all hurt when families are broken up.”

Shirley Tan (right) and Jay Mercado (left) with their two children and Rep. Jerrold Nadler (center) (Blade photo by Michael Key)

Shirley Tan, a Philippines native and lesbian Pacifica, Calif., resident, put a face to the need for passing UAFA during the news conference when she recounted how she was arrested in January 2009 by Immigrations and Customs Enforcement and threatened with deportation away from her partner for nearly 25 years, Jay Mercado, and their two children: Jashley and Joriene.

“When I think of UAFA, I am reminded of what that ICE officer told me when I was picked up — that if Jay is a man, this wouldn’t have happened,” Tan said. “Same-sex couples should be given the right to petition for their partners. It is just plain discrimination that until now, this great country cannot have equality among their citizens.”

Sen. Dianne Feinstein (D-Calif.) has since introduced private legislation to keep Tan and Mercado together in the United States with their children temporarily, and is expected to do so again during the 112th Congress. The bill must be reintroduced every two years. If not, or if Feinstein leaves the Senate, Tan would again face deportation.

UAFA has provisions that would impose penalties on those who would seek the exploit the opportunities provided under the legislation should it become law. Any person found to have entered into a fraudulent, permanent partnership for the purposes of obtaining a visa for another individual could be subject to five-year imprisonment or a $250,000 fine, or both. UAFA also requires bi-national couples to provide proof that they are partners as defined in the legislation.

Representatives from LGBT advocacy groups who were present at the news conference — including Human Rights Campaign President Joe Solmonese and National Gay & Lesbian Task Force Executive Director Rea Carey — commended Nadler for introducing the legislation and said the bill is badly needed to eliminate the inequities that bi-national same-sex couples face.

Rachel Tiven, executive director of Immigration Equality, expressed optimism about the chances of action from either Congress or the administration to provide relief to bi-national same-sex couples.

“Everything is coming together for LGBT Americans with foreign national partners,” Tiven said. “This is the time that have been waiting for. We are so close, we are so close at last to having truly equal rights for all American families — and LGBT immigrant families at the center of that change.”

The White House’s support for UAFA isn’t as strong as it is for other pro-LGBT legislation, such as the Employment Non-Discrimination Act.

Shin Inouye, a White House spokesperson, said President Obama “supports the goals of this legislation,” but didn’t explicitly endorse UAFA.

“He believes that Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country and thus we will work closely with Congress to craft comprehensive immigration reform legislation,” Inouye added.

The 100 co-sponsors that the House legislation had as of Thursday include the four openly gay members of Congress — Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.) — as well as House Minority Leader Nancy Pelosi (D-Calif.) and Reps. Mike Honda (D-Calif.), Sheila Jackson-Lee (D-Texas) and Jackie Speier (D-Calif.).

A proponent of comprehensive immigration reform, Polis during news conference said the inability of gay Americans to sponsor their foreign partners under current law is “just another example of how our broken immigration system is tearing apart.”

“Instead of continuing to discriminate against same-sex marriage, we should welcome immigrants who help grow our economy and make our country stronger,” Polis said. “Regardless of which side of the aisle one stands on, we all agree that our immigration system should reflect the values that our country hold dear. It should reward those who work hard and support families; instead, we have a system that breaks up families by deporting the loved ones of Americans.”

Movement on the UAFA in the House is expected to be difficult — to say the least — with Republicans in control of the chamber. Neither the office of U.S. House Speaker John Boehner (R-Ohio) nor the office of House Judiciary Committee Chair Lamar Smith (R-Texas), who’s known for anti-gay views, responded to the Washington Blade’s request to comment on the legislation.

During the news conference, Nadler said he’s spoken with Smith about having a hearing or a markup on UAFA, but added the Texas lawmaker was “non-committal.”

A House Democratic aide, who spoke on condition of anonymity, expressed pessimism about passage of UAFA both in the House Judiciary Committee and on the House floor because of the anti-gay Republican positions.

“The chairman has pretty strong stand against LGBT equality and against comprehensive immigration reform, so this might be the best Judiciary Committee to get optimistic about,” the aide said. “I don’t see Boehner bringing it up and I don’t see where you get enough Republicans [for passage] — even if you held the entire Democratic caucus together.”

No Republicans have signed on as co-sponsors for UAFA. Nadler said he’s spoken to some GOP lawmakers who have told him they’re “thinking about” signing on in support, although he declined to identify which lawmakers made these comments.

“We’d love to work with the Republicans on it, and we’re reaching out to see who we can get,” Nadler said.

In the Senate, where Democrats remain in control following the 2010 election, UAFA is seen as having as having brighter prospects, although challenges remain.

A Senate Democratic aide, who spoke on condition of anonymity, said Republican support would be needed to make progress on UAFA in the Senate despite Democratic control of the chamber.

“It is difficult to advance immigration-related legislation, and particularly difficult to do so without bipartisan support, and so we are focused right now on shoring up more support for the bill,” the aide said.

In the Senate, UAFA had 18 co-sponsors as of Thursday, including Assistant Majority Leader Dick Durbin (D-Ill.) as well as Sens. Ben Cardin (D-Md.), Bob Casey (D-Pa.), Kirsten Gillibrand (D-N.Y.) and Chuck Schumer (D-N.Y.). As in the House, the Senate version of the legislation has no Republican co-sponsors.

UAFA supporters have long advocated that comprehensive immigration reform is the best vehicle from moving the legislation forward in both chambers of Congress. Earlier this year, media reports emerged that key players for immigration reform in the Senate, including Schumer, had begun talks about comprehensive immigration reform legislation — intriguing LGBT advocates about the possibility of UAFA inclusion.

Rep. Luis Gutierrez (D-Ill.), a UAFA co-sponsor and leading proponent of comprehensive immigration reform, said during the news conference he’s heard about the immigration inequities facing LGBT people — as part of his “Campaign for American Children and Families” tour, which is aimed to address broader immigration and deportation concerns — and believes language to protect bi-national same-sex couples should part of any larger immigration package that passes Congress.

“If deportations or an inflexible visa system or any of the problems our immigration system are holding back and splitting up American families, it’s holding back gay and lesbian families as much or even more,” Gutierrez said. “That is why we need UAFA, and why it needs to be part of immigration reform.”

But whether immigration reform can pass both chambers of Congress — especially with Republicans in control of the House — remains to be seen, even though Obama mentioned it as legislative priority during the 2011 State of the Union address. Polis has told the Washington Blade passage is “unlikely” this Congress will pass immigration reform because many members of the Republican ran against it in their 2010 campaigns.

During the news conference, Nadler said he doesn’t know what the prospects are for passing comprehensive immigration reform in the 112th Congress, but said UAFA supporters will “press ahead” whether or not the larger bill goes forward.

As the new effort was launched to pass legislation, lawmakers also made their case with the Justice Department and the Department of Homeland Security to stop the separation of foreign nationals in legally recognized same-sex marriages administratively.

Lofgren announced at the news conference on Thursday that she and 47 other Democratic lawmakers sent a letter to the departments asking the Obama administration to take action — as she denounced the current situation under U.S. immigration law.

“Changing the law takes time, and that is something that so many of these families, including U.S. citizens, spouses and children, do not have,” Lofgren said. “Our administration, like all prior administrations, has the ability under current law to avoid the senseless destruction of families while the validity of the Defense of Marriage Act is tackled in the courts and in Congress.”

The letter maintains that the Obama administration has the authority to stop the deportations of foreign nationals in legally recognized same-sex marriage now that the president has found that DOMA is unconstitutional. On Feb. 23, U.S. Attorney General Eric General announced that Obama determined DOMA was unconstitutional and that the Justice Department would no longer defend the anti-gay law against litigation in court.

To the Department of Homeland Security, the lawmakers ask U.S. Citizenship & Immigration Services to hold the denial of green card applications for married same-sex couples until Congress repeals DOMA or the courts make a determination on the law’s constitutionality.

“We further ask that Immigration and Customs Enforcement (ICE) exercise its existing prosecutorial discretion in removal proceedings with respect to lawfully-married foreign nationals who would be eligible for immigration relief but for DOMA,” the lawmakers write. “ICE already exercises prosecutorial discretion and promotes efficient use of government resources by dismissing without prejudice certain cases in which a foreign national appears to be eligible for relief from removal on the basis of a pending petition or application.”

Adam Fetcher, a Department of Homeland Security spokesperson, said his department plans to respond to the lawmakers, but continues to enforce DOMA as directed by the Justice Department.

“The administration will respond to the members of Congress directly,” Fetcher said. “Pursuant to the attorney general’s guidance, the Defense of Marriage Act remains in effect and the executive branch, including DHS, will continue to enforce it unless and until Congress repeals it or there a final judicial determination that it is unconstitutional.”

To the Justice Department, the lawmakers ask that the Board of Immigration Appeals and the Executive Office of Immigration Review issue a moratorium on removing married foreign nationals in same-sex marriages “who would be eligible to adjust their status to lawful permanent residence but for DOMA.”

Tracy Schmaler, a Justice Department spokesperson, said her department is reviewing the letter and will respond.

The letter from U.S. House members comes on the heels of a similar letter that Sen. John Kerry (D-Mass.) and 11 other U.S. senators sent last week to Obama administration seeking restitution for married bi-national same-sex couples. Rep. Rush Holt (D-N.J.), who is among the co-signers of the Lofgren letter, also last week sent a similar missive to the Obama administration.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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