April 8, 2011 at 1:45 pm EDT | by Chris Johnson
Senators: Stop separating married bi-national couples

Sen. John Kerry (Photo courtesy senate.gov)

Sen. John Kerry (D-Mass.) is leading a group of 12 Democratic U.S. senators who are calling on the Obama administration to allow legally married bi-national same-sex couples to remain together in the United States.

In a letter dated April 6, the senators urge the Justice Department and the Department of Homeland Security to take action to protect these couples until the courts determine the constitutionality of the Defense of Marriage Act or Congress repeals the anti-gay statute.

Among other things, the senators ask the Department of Homeland Security to halt the denial of green cards for legally married same-sex couples so they aren’t separated under current immigration law.

“In addition, we ask DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA,” the senators write.

Additionally, the senators asks the Justice Department to issue a moratorium on deportation of foreign nationals who are in a legal same-sex marriages and are prevented from becoming legal permanent residents because of DOMA.

In addition to Kerry, Sens. Patrick Leahy (D-Vt.), Barbara Boxer (D-Calif.), Ron Wyden (D-Ore.), Chris Coons (D-Del.), Jeff Merkley (D-Ore.), Kirsten Gillibrand (D-N.Y.), Sherrod Brown (D-Ohio), Daniel Akaka (D-Hawaii), Daniel Inouye (D-Hawaii), Sheldon Whitehouse (D-R.I.) and Frank Lautenberg (D-N.J.) penned their names to the letter.

Rachel Tiven, executive director for Immigration Equality, urged U.S. Citizenship & Immigration Services to heed the call of the senators and make changes to benefit married bi-national same-sex couples.

“Unless USCIS changes course, real families will be impacted, and American citizens will be separated from their loved ones,” Tiven said. “Maintaining the status quo for these families will mean forcing them apart, or into exile. We call on USCIS to heed the advice of Sen. Kerry, and the other signatories on today’s letter, and allow these loving, committed couples to remain together.”

Last week, Rep. Rush Holt (D-N.J.) sent a similar letter to DHS asking the department to halt the deportation of foreign nationals in same-sex marriages until Congress repeals DOMA or the courts strike down the statute.

The letters follow President Obama’s determination in February that DOMA is unconstitutional and Attorney General Eric Holder’s notification that the Justice Department would no longer enforce the anti-gay statute against litigation in court.

Still, the Obama administration continues to enforce DOMA, which prevents the federal government from recognizing same-sex marriages. 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.

Adam Fetcher, a DHS spokesperson, said the administration plans to respond directly to senators who sent the letter.

“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,” Fetcher said.

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

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

  • This is all well and good but what about bi-national couples who didn’t get married and are now separated.

    • This is one of the biggest reasons why immigration law should treat gay couples equally to straight couples. When immigration equality is achieved, the foreign partner should be able to enter the US on a K-1 fiance visa to join his or her American partner, they could marry in the States, and the foreign partner would then qualify for permanent residency. This is the exact same process that has been available for straight couples for decades.

      • Agreed. This is why Uniting American Family Act (UAFA) is an extremely important piece of legislation that needs to be passed. Everyone needs to contact their Senators and their Representative and encourage them to co-sponsor the bill.

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