Secretary of Homeland Security Janet Napolitano said DOMA precludes placing marriage-based green cards in abeyance for gay couples (Washington Blade file photo by Michael Key)

Secretary of Homeland Security Janet Napolitano continues to say the Obama administration is unable to place on hold marriage-based green card applications for bi-national same-sex couples as long as the Defense of Marriage Act remains on the books.

When asked by the Washington Blade on Monday during a White House news conference, Napolitano asserted DHS can’t take such action, which could protect bi-national gay couples from separation stop the deportation process in some extreme cases.

“The legal advice we have received is that we can’t put them in abeyance because DOMA remains the law,” Napolitano said. “We’d like to see that law overturned. In practical terms, however, most of those cases fall within very, very low priority in terms of what we’ve done over the last years, which is to build priorities into immigration enforcement, so we’re not seeing, in practicality, those deportations occur.”

In 2009, DHS took such action for the widows of U.S. citizens when Napolitano ordered U.S. Citizenship & Immigration Services to grant deferred action widows who are foreign nationals and suspend adjudication of their visa petitions and adjustment applications.

Asked why her department couldn’t take similar action for bi-national same-sex couples, Napolitano replied, “Well, because of DOMA.”

LGBT advocates — most recently Sen. Kirsten Gillibrand (D-N.Y.) and other senators in a letter to the Obama administration — have been calling on the Obama administration to place on hold the marriage-based green card applications for bi-national couples, especially because a final determination from the Supreme Court on the constitutionality of DOMA seems imminent. But each time, DHS has responded that it’ll continue to enforce DOMA as long as it remains on the books.

The Obama administration has taken steps to address this issue. For example, in October, the Department of Homeland Security issued guidance stipulating immigration officers should consider “long-term, same-sex partners” as families when considering whether to exercise prosecutorial discretion in the potential deportation of an undocumented immigrant.

Steve Ralls, a spokesperson for Immigration Equality, said though his organization appreciates the efforts DHS has undertaken to protect bi-national gay couples, “there is clear legal precedent” to place their marriage-based green card applications in abeyance.

“By not doing so, the Administration has instead forced some couples to fall out of legal status, or to consider exile abroad,” Ralls added. “While not actively pursuing the partners of LGBT Americans for deportation is a welcome step forward, giving those couples the legal status abeyance would confer is a critical part of ensuring they have the legal stability they need to protect their families.”

The Board of Immigration Appeals — an agency under the Justice Department — has also taken action for certain married bi-national same-sex couples seeking relief apparently in anticipation of a ruling from the Supreme Court against DOMA. The agency has issued remands in at least 10 cases involving denied card petitions filed on behalf of same-sex couples, according to The DOMA Project.

Lavi Soloway, an immigration attorney and co-founder of the DOMA Project, denied the legal reasoning offered by Napolitano, saying DOMA prevents DHS from approving marriage-based green card applications, but says nothing about holding them in abeyance, nor would such a move “violate the spirit or letter of DOMA.”

“Is it regrettable that the administration continues to cite the questionable ‘legal advice’ that DOMA prohibits any remedies to would protect married binational gay and lesbian couples,” Soloway said. “Furthermore, this interpretation of DOMA is contradicted by their own action in the deportation context, where after two years of telling us that they could not issue a moratorium to stop ‘DOMA deportations’ for that very reason, the administration finally issued guidance in October 2012 to prevent deportations of the same-sex partners and spouses of American citizens who would be otherwise eligible for green cards if not for DOMA.”

Soloway maintained the Obama administration can do three things to help bi-national same-sex couples: 1) place their marriage-based green card applications in abeyance; 2) extend humanitarian parole to all foreign partners who are stuck abroad and end the exile of gay Americans caused by DOMA; and 3) offer deferred action to the foreign partners of gay Americans who are currently in the U.S. without lawful status.

“The Obama administration’s lack of movement on these interim remedies cannot be blamed on DOMA, and is inconsistent with President’s recent statements championing equality for lesbian and gay couples,” Soloway concluded.