March 30, 2011 at 3:17 pm EDT | by Chris Johnson
Green card hold ends for foreigners in same-sex marriages

An agency within the Department of Homeland Security announced Wednesday that the Obama administration has resumed its authority to deport foreign nationals in legally recognized same-sex marriages within the United States following the receipt of updated legal guidance.

Christopher Bentley, a spokesperson for U.S. Citizenship & Immigration Services, confirmed on Wednesday that the temporary hold on green card applications from married same-sex couples has been lifted after the agency received the anticipated legal instructions on issues that emerged after President Obama declared the Defense of Marriage Act unconstitutional.

“USCIS has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law,” Bentley said.

On Feb. 23, U.S. Attorney General Eric Holder informed that Obama had determined that DOMA is unconstitutional and will no longer defend the statute against litigation in court. The temporary hold on deportations of foreign nationals in same-sex marriage, which was officially announced by USCIS earlier this week, was the result of this announcement from Holder.

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. That situation isn’t the case for married opposite-sex couples in the United States. Straight Americans can sponsor their spouse for residency through green card applications.

Steve Ralls, spokesperson for Immigration Equality, expressed disappointment that the Obama administration resumed its authority to deport foreign nationals in legally recognized same-sex marriages.

“Our government should be in the business of keeping families together, not tearing them apart,” Ralls said. “The Department of Justice has said it believes DOMA is unconstitutional. Immigration Equality agrees, and we believe it is inappropriate to use that unconstitutional law to separate American citizens from their loved ones.”

Ralls said Immigration Equality is reiterating its call for the Obama administration to halt the denial of green card applications. Earlier in March, the organization had sent letters to the Justice Department and the Department of Homeland Security asking them to hold the deportations in abeyance until the courts determine the constitutionality of DOMA.

“At the very least, DHS should wait for the courts to settle DOMA’s constitutionality before removing spouses who would immediately benefit if the law is struck down,” Ralls said. “Surely we can all agree that no one should be in a rush to force American citizens and their families apart.”

Lavi Soloway, an attorney with Masliah & Soloway PC in New York who handles immigration cases, said the decision to end the abeyance on green card applications is “extremely disappointing.”

“While these cases cannot be approved under current law, they should not be denied,” Soloway said. “Denying the applications deprives these LGBT families the protection they deserve and desperately need.”

Soloway called on USCIS to delay final adjudication of green card applications filed by gay couples until DOMA’s fate is resolved by Congress or the Supreme Court.

“While DOMA remains the law of the land, Secretary [of Homeland Security Janet] Napolitano and Attorney General Holder must develop interim remedies to ensure that gay and lesbian couples are not torn apart,” Soloway said. “Putting these green card applications on hold is the appropriate policy at this time because it is consistent with the continued enforcement of DOMA and because it provides a desperately needed lifeline for couples who live in fear of separation every day.”

Additionally, Soloway called on the Department of Homeland Security to issue a moratorium on the deportations of spouses of gay Americans.

“The executive branch has the authority to exercise discretion in both contexts and can do so while also continuing to enforce DOMA,” Soloway said.

Christopher Nugent, who’s gay and co-chair of the American Bar Association’s rights of immigrants committee, called the lifting of the hold a “shocking” reversal for USCIS.

“USCIS’ rescission on recently enacted policy and practice for vulnerable same-sex married partners represents a shocking unprecedented reversal and temporary set-back until justice prevails through the litigation or USCIS’ revisiting their harmful approach,” Nugent said.

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

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