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New DHS guidance on immigration omits same-sex couples

Lawmaker, activists concerned about risk of dividing families

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The omission of bi-national same-sex couples from recent guidance from the Obama administration is troubling advocates who fear the omission may mean LGBT families won’t be covered under new immigration policy.

The Department of Homeland Security issued guidance on Thursday to attorneys with U.S. Immigration & Customs Enforcement detailing which undocumented immigrants could be deemed a low priority and taken out of the deportation pipeline.

The guidance is the result of the announcement from theĀ Obama administration in August that it will conduct a case-by-case review of about 300,000 undocumented immigrants facing possible deportation. Those who have beenĀ convicted of crimes or pose a security risk will be a higher priority for deportation, while those who are deemed lower priority will be taken out of the pipeline.

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Administration officials have said they’ll weighĀ a personā€™s ties and contributions to the community and family relationships in considering which immigrants are low priority, and these criteria would be inclusive of LGBT families.

According to the New York Times, the process for determining which immigrants could be taken out of the deportation pipeline began on Thursday.

But in the guidance spelling out the details for this review, no mention of immigrants who are in same-sex relationships with U.S. citizens is enumerated among the categories of people who are listed as those who could be considered low priority.

Categories that are identified as low priority include immigrants who had enlisted in the armed forces or those who came to the United States under the age of 16 and are pursuing a college degree. Such immigrants would be eligible for citizenship under passage of the DREAM Act.

Other categories deemed low priority are those who older than age 65 and have lived in the country for more than 10 years and those who have been the victim of domestic violence.

Steve Ralls, spokesperson for Immigration Equality, said the lack of explicit mention of bi-national same-sex couples “isnā€™t just deeply disappointing; it is also detrimental to LGBT immigrants and their American spouses and partners.”

“By declining to address, in writing, the unique circumstances surrounding those couples, DHS has left too much room for interpretation and left too many couples vulnerable to separation,” Ralls said. “There is no justifiable reason for exclusionary guidelines, and every reason to be explicit in clarifying that the administration believes LGBT Americans should not be forced apart from their husbands and wives.”

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Despite the lack of explicit mention, the guidance identifies as another low category an undocumented immigrant “who has a very long-term presence in the United States, has a immediate family member who is a United States citizen, and has established compelling ties and made compelling contributions to the United States.” An immigrant in a same-sex relationship with a U.S. citizen may qualify in this category.

Ralls acknowledged that DHS may intend for bi-national same-sex couples to fall into this category, but said the language is too vague to ensure protections.

“The issue, however, lies in the fact that DHS does not say so in its written guidelines, leaving the definition of ‘immediate family member’ open to interpretation by DHS and ICE officers,” Ralls said. “Thatā€™s problematic because, without that explicit guidance, there is no documentation mandating that officers use an inclusive definition as they review pending deportation cases.”

Ralls cited as an example a Boston-area bi-national couple who were told by an immigration official they couldn’t qualify for relief under the new policy ā€” even though they’re legally married.

“The official ā€” despite past press statements by DHS about the agencyā€™s inclusive definition of family ā€” declared they were under no obligation to offer discretion on the basis of the coupleā€™s marriage in Massachusetts,” Ralls said. “As a result, the immigrant spouse is now facing deportation to a hostile, homophobic country in the Caribbean. Their case is a perfect example of the very real ā€” and very dangerous ā€” position couples are faced with when DHS relies on verbal instruction rather than written guidance.”

Lavi Soloway, founder of Stop the Deportations, also criticized the Obama administration for the omission.

ā€œIt is disturbing that DHS continues to exclude LGBT families from its increasingly specific written guidelines on prosecutorial discretion in deportation cases,” Soloway said. “DHS telegraphs through its spokespersons that we are intended to be included within the phrasing ‘immediate family members’ or ‘family relationships,’ but there can be no justification for leaving this up to the imagination of individual ICE attorneys or deportation officers. Strong guidance on LGBT families facing deportation would ensure a uniform national policy and would do nothing to limit the exercise of discretion.”

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A DHS official, who spoke on condition of anonymity, said same-sex couples aren’t explicitly mentioned in the guidance because the Obama administration wants to cover both married and unmarried LGBT couples.

“One of the strongest reasons why we go with a family approach ā€” focusing on the family relationship and not a marital relationship ā€” is because we want to include individuals who are in long standing domestic partnerships so we can capture more same-sex couples,” the official said. “We used the term the family members largely so that domestic partnerships would be included in the standard.”

Asked whether 100 percent of foreign nationals in same-sex relationships with U.S. citizens would be taken out of the pipeline if they have no other factors weighing against them, the official replied, “When we exercise prosecutorial discretion, we’re limited by law and doing it on a case-by-case. So every case in unique; every case is different. I really couldn’t say 100 percent of any category is going to be saved from removal.”

The official added that in two similarly situated cases where one immigrant is an opposite-sex marriage and has no negative factors weighing him or her and another immigrant is in a same-sex relationship and has no negative factors weighing against him or her, both would “be treated equally under this policy.”

In a statement, Rep. Jerrold Nadler (D-N.Y.) also said he finds the lack of explicit mention of same-sex couples in the guidance unpalatable.

ā€œI am very concerned by the administrationā€™s failure to state in its written guidance to ICE attorneys, released today, that families of LGBT binational couples should be treated equally, like all other families in America,” Nadler said.

The lawmaker is the sponsor of the Uniting American Families Act, legislation that would enable gay Americans to sponsor their foreign partners for residency in the United States.

Nadler continued, “While I appreciate prior commitments by DHS that LGBT family ties will be taken into account in immigration enforcement decisions ā€“ and that this will be explained to ICE agents ā€“ without such a directive in writing, there is a serious risk that such families could be wrongfully divided. With the administration taking an otherwise positive step to make immigration enforcement fairer, it is extremely frustrating that families of LGBT binational couples remain at risk. I will be working to ensure that those families are also protected.ā€

The New York Democrat is among 69 House members who sent to a letter to the Obama administration in September calling for more explicit guidance that bi-national same-sex couples would be included in the new immigration policy.

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Federal Government

Trump ‘culture war’ complicates HUD’s distribution of $3.6B in housing grants

Senate Dems call for new agreements

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U.S. Sen. Adam Schiff (D-Calif.) (Washington Blade photo by Michael Key)

The disbursement of more than $3.6 billion in federal grants to housing providers has been paused for weeks while the U.S. Department of Housing and Urban Development seeks to condition receipt of the funding on compliance with President Donald Trump’s executive actions targeting DEI and transgender and immigrant communities.

March 4 was the statutory deadline for the agency to distribute the funds, which come through the Continuum of Care Program in support of local governments and nonprofit organizations working to promote “a community-wide commitment to the goal of ending homelessness.”

On March 13, a group of Senate Democrats led by U.S. Sens. Adam Schiff (Calif.) and Tina Smith (Minn.) wrote to HUD Secretary Scott Turner urging him to move quickly on distributing the grants and warning of the consequences that recipients are now facing and the harm they will encounter in the future if delays persist.

“To keep the lights on, providers are now being forced to draw on lines of credit at significant cost and risk to their organizations,” the senators said. “These projects enable homeless service providers to help veterans, families with children, youth, seniors, and vulnerable individuals access permanent and temporary housing, crisis counseling, and other supportive services.ā€

HUD subsequently disseminated grant agreements ā€” and Schiff published an example on his office’s website ā€” that included, among other provisions, language stipulating that the awardee (1) “shall not use grant funds to promote ‘gender ideology,’ as defined in E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” (2) certifies that it does not operate any programs promoting diversity, equity, and inclusion that violate any applicable Federal anti-discrimination laws, and (3) agrees not to use “that funding in a manner that by design or effect facilitates the subsidization or promotion of illegal immigration or abets so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.”

On March 14, the 4th U.S. Court of Appeals stayed a nationwide injunction enjoining three parts of Trump’s executive order on DEI, and the following day, HUD rescinded the CoC contracts and said to expect new agreements within a week as the agency was “working to revise its CoC grant agreements to be consistent with Federal law and compliant with applicable court orders.”

Schiff then led a second letter to Turner on March 19 with the Senate Democratic Leader Chuck Schumer (N.Y.) and U.S. Sens. Alex Padilla (D-Calif.), Martin Heinrich (D-N.M.), Ron Wyden (D-Ore.), Mazie Hirono (D- Hawaii), and Richard Blumenthal (Conn.).

“We urge the department to immediately issue new CoC grant agreements consistent with longstanding practiceā€” free of the aforementioned conditionsā€” to ensure all individuals experiencing homelessness receive protection and support, regardless of gender identity, location, or other characteristics,” they said, requesting a response by March 31.

“The initial FY2024 grant agreements issued to CoC funding recipients contained new requirements that are deeply problematic, and likely unlawful, requirements,” the senators argued. “These mandates, such as barring shelters from serving transgender people, prohibiting DEI initiatives, and certifying that they do not support ‘sanctuary’ policies protecting noncitizens, conflict with federal civil rights, fair housing, and immigration laws, raising serious legal and constitutional concerns.”

The lawmakers noted “the harm caused by these delayed and unfulfilled CoC grant agreements will fall disproportionately on our most vulnerable populations, including women, families with children, youth, veterans, survivors of domestic and intimate partner violence, people with disabilities, and LGBTQ+ individuals.” They added, “Women experiencing homelessness ā€” many of whom are fleeing domestic abuse ā€” already face significant barriers to safety and stability, and restricting access to critical housing services will only further endanger their lives and well-being.”

Citing research that nearly one in three transgender Americans has experiences homelessness in their lives, Schiff and his colleagues stressed that “Transgender and nonbinary people in the U.S. face significant barriers to securing safe housing, with many experiencing homelessness and high rates of mistreatment and violence in shelters.”

With respect to the language in the agreements about “sanctuary” policies, the senators wrote “The organizations receiving CoC funds exist to provide critical, non-discriminatory aid to those in need, regardless of their immigration status. These organizations do not set or enforce immigration policy ā€” they simply fulfill their legal duty to provide life-saving and life-changing care.”

Later on March 19, HUD began issuing new contracts that did not contain the provision concerning DEI but did include the same language about “gender ideology” and “sanctuary” policies.

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U.S. Federal Courts

Court halts removal of two transgender service members

Case challenging anti-trans military ban proceeds in D.C.

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Laila and Logan Ireland (Photo courtesy of the couple)

A federal court in New Jersey issued a temporary restraining order on Monday that will halt the separation of two transgender service members from the U.S. military while their case in D.C. challenging the Trump-Vance administration’s ban moves forward.

The order by Judge Christine O’Hearn pauses proceedings against Staff Sgt. Nicholas Bear Bade and Master Sgt. Logan Ireland, who “have been pulled from key deployments and placed on administrative absence against their will because of the ban,” according to a joint press release Monday by the National Center for Lesbian Rights and GLAD Law, which are representing the service members together with other litigants in Ireland v. Hegseth and in the case underway in the U.S. District Court for the District of Columbia, Talbott v. Trump.

“That court granted a preliminary injunction March 18 barring the Department of Defense from implementing the ban, finding that it discriminates based on sex and transgender status; that it is ‘soaked in animus;’ and that, due to the governmentā€™s failure to present any evidence supporting the ban, it is ‘highly unlikely’ to survive any level of judicial review,” the groups noted in their press release.

Ireland spoke with the Washington Blade in January along with other trans service members and former service members who shared their experiences with the military and their feelings on the new administration’s efforts to bar trans people from the U.S. armed forces.

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State Department

Report: State Department to remove LGBTQ information from annual human rights report

Spokesperson declines to ‘preview’ information ‘at this time’

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(Photo courtesy of the Library of Congress)

The State Department has not commented a report that indicates it plans to remove LGBTQ-specific information from their annual human rights report.

Politico on March 19 reported the Trump-Vance administration “is slashing the State Department’s annual human rights report ā€” cutting sections about the rights of women, the disabled, the LGBTQ+ community, and more.” The Politico article notes it obtained “documents” and spoke with “a current and a former State Department official who were familiar with the plan.”

“We are not previewing the human rights report at this time,” a State Department spokesperson told the Washington Blade on March 21.

Congress requires the State Department to release a human rights report each year. 

The 2023 report specifically noted Uganda’s Anti-Homosexuality Act that contains a death penalty provision for “aggravated homosexuality.” The 2022 report highlighted, among other things, anti-LGBTQ crackdowns in Afghanistan, Russia, and Hungary and so-called conversion therapy.

President Donald Trump since he took office has signed a number of executive orders that have specifically targeted the LGBTQ and intersex community. These include the ā€œDefending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Governmentā€ directive that, among other things,Ā bans the State Department from issuing passports with ā€œXā€ gender markers.

The State Department has eliminated references to transgender travelers from its travel advisories. Germany, Denmark, and Finland have issued travel advisories for trans and nonbinary people who are planning to visit the U.S.

A directive that Secretary of State Marco Rubio issued bans embassies and other U.S. diplomatic institutions from flying the Pride flag. (Former President Joe Biden in March 2024 signed a government spending bill with a provision that banned Pride flags from flying over U.S. embassies.)

The U.S. has withdrawn from the U.N. LGBTI Core Group, a group of U.N. member states that have pledged to support LGBTQ and intersex rights, and the Organization of American States’ LGBTI Core Group. The Trump-Vance administration’s decision to suspend most U.S. foreign aid spending has been a “catastrophe” for the global LGBTQ and intersex rights movement.

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