Earlier this month, the Washington Blade’s Chris Johnson reported that Sen. Richard Blumenthal of Connecticut has written to Department of Homeland Security Secretary Janet Napolitano to ask that she instruct U.S. Citizenship and Immigration Services (USCIS) to hold in abeyance, or withhold from processing, the pending immigrant petition of a same-sex couple until the fate of the Defense of Marriage Act is determined.
This letter comes at a time when the White House has sent very mixed signals on not just the effects of the Defense of Marriage Act on immigration status, but also on the future of the nation’s current immigration apparatus. Recent statements by Secretary Napolitano suggest that there may in fact be actions that her department can take in the absence of real legislative or judicial solutions.
In the case of the petitioner Kelli Ryan and her U.K.-citizen spouse Lucy Truman, the petition has been filed by Ryan in the same manner that a married heterosexual couple would file it, because the State of Connecticut recognizes their marriage. However, USCIS is a federal agency and is bound to the idea of marriage as defined by DOMA. Because the legal status of DOMA has been in question, Sen. Blumenthal has asked that USCIS hold Ryan’s petition in abeyance, and noted past signals from the Department that they would be exercising ‘discretion’ on immigration cases.
The term ‘discretion’ has been used several times by officials in DHS and the Department of Justice in several recent instances to refer to strategies for dealing with immigration. These strategies have been developed as a response to current dysfunction of the immigration system and the failure of Congress to enact any meaningful steps toward reform. On the law enforcement side, asking agents and prosecutors to use ‘discretion’ does not entail passage of a law or even a regulation necessarily, but is a request that agents and lawyers take careful consideration in deciding who to pursue charges against – using the resources of DHS and DOJ to go after criminals, people who pose a threat to national security, and recent illegal entrants rather than using them to attempt to separate someone like Truman, who is a productive member of society, from her spouse.
On March 2, 2011 and June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two memorandums that outlined the idea of using ‘prosecutorial discretion.’ In these memos, Morton was focusing on the way that resources are applied to deportation proceedings, which can be the outcome of a failed green card application process. He said that his agency, in conjunction with the Department of Justice, should prioritize deportation cases so that resources are not used to deport people who would likely be allowed to stay in the United States had the government been capable of reforming the immigration system in a meaningful way.
MORE IN THE BLADE: BLUMENTHAL SEEKS TO AID LESBIAN BI-NATIONAL COUPLE
In August, the White House announced to the media that, in the absence of real comprehensive immigration reform legislation out of Congress, it would be taking steps to alter immigration policies as much as it could through the executive branch.
The announcement was based on a letter written by Secretary Napolitano to Sen. Richard Durbin of Illinois, who had previously written her to express frustration at the failure of Congress to pass the DREAM Act, which was meant to provide a pathway to permanent residence for children who had been brought to the United States illegally by their parents. Secretary Napolitano’s letter stated that her department was in the process of setting up an interagency review apparatus with the Department of Justice as described in the Morton memos. The degree to which ‘prosecutorial discretion’ is and will be taken into account when considering immigration matters is still unclear, though there is no doubt that attorneys are currently testing this course in Immigration Courts.
If the White House and DHS are willing to take special action to protect the cases of immigrants who would be affected by the theoretical future passage of the DREAM Act, or meaningful comprehensive immigration reform, then they should be just as willing to take measures to protect LGBT immigrants whose cases would be allowed to advance in the absence of DOMA, which the DOJ has already stated that it believes to be unconstitutional. The least that Napolitano’s department could do would be to respond to Blumenthal’s request by using its discretion to issue a hold on Ryan’s petition for her spouse, and on other petitions made by same-sex partners that would be approved were it not for the continued existence of DOMA.
Sean Cotter is a New York-based freelance writer. Reach him at firstname.lastname@example.org.