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Napolitano: DOMA prohibits action to help bi-national couples

Cites ‘legal advice’ stipulating DHS can’t place marriage-based green cards on hold

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United States Secretary of Homeland Security Janet Napolitano, gay news, Washington Blade
United States Secretary of Homeland Security Janet Napolitano, gay news, Washington Blade

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.

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Over 100 LGBTQ-themed books in a Florida school district labeled with advisory warning

They warn: “this book has been identified by some community members as unsuitable for students.”

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Advisory Notice (via Twitter)

A southwest Florida district put parental “advisory notice” on over 100 books, many of which are race or LGBTQ-themed. 

A great number of books in Collier County Public Schools, either digital or physical, now have warning labels writing “Advisory notice to parents,” according to an NBC report,

The label, tweeted by nonprofit free-speech-promoting group PEN American, states, “This Advisory Notice shall serve to inform you that this book has been identified by some community members as unsuitable for students. This book will also be identified in the Destiny system with the same notation. The decision as to whether this book is suitable or unsuitable shall be the decision of the parent(s) who has the right to oversee his/her child’s education consistent with state law.” 

Stephana Ferrell, co-founder of the Florida Freedom to Read Project, which means to fight book banning, told NBC that she had a call from Elizabeth Alves, the associate superintendent of teaching and learning for Collier County Public Schools. In the call, Alves told her that the district added the labels starting in February. 

These measures, which Alves described as a “compromise,” happened after the district’s legal representative talked with the Florida Citizens Alliance, a conservative group which initiated a “Porn in Schools Report” project last year. The report included a list of books that “promote gender self-identification and same-sex marriage” as well as titles that include “indecent and offensive material,” as the group explained. 

Chad Oliver, the Collier County Public Schools spokesperson, on the other hand offered a different story. 

Oliver sent an email to NBC News and said, “Based upon advice from the General Counsel, we placed advisory notices on books about which parents and community members had expressed concern and in accordance with the recently passed Parents’ Bill of Rights Law (HB 241).” 

The law referred by Oliver is also known as the “Don’t Say Gay” law.

According to PEN America, there are 110 labeled books in total, and the list greatly overlaps with the one Florida Citizens Alliance inquired about with Collier County Public Schools. 

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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

“It is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. “This legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.”

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Biden administration shifts monkeypox vaccine approach amid shortage

Health experts sees new guidance as mixed bag

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The Biden administration has changed its guidance on monkeypox vaccines to enhance availability amid the shortage.

The Biden administration, amid criticism it was slow to act on the monkeypox outbreak and still not meeting the demand for vaccines as the number of cases continues to grow, has announced a shift in guidance for implementation of the shot in an effort to enhance availability.

As the estimated number of monkeypox cases in the United States reaches 8,900, top health officials announced the new move on Tuesday as part of a decision by Secretary of Health & Human Services Xavier Becerra to issue a determination under Section 564 of the Federal Food, Drug and Cosmetic Act to justify emergency use authorization of vaccines. The announcement follows up on the Biden administration’s announcement last week declaring the monkeypox outbreak a public health emergency.

Becerra said in a conference call with reporters the 564 determination and change in approach to vaccines would “boost and strengthen” the Biden administration’s response to monkeypox, which has overwhelmingly affected gay and bisexual men, and “safely accelerates and multiplies our supply of effective vaccines by up to fivefold.”

“Today’s action also reaffirms HHS and this administration’s commitment to using all available resources and capabilities to end the monkeypox outbreak and provide the best possible care to those suffering from the virus,” Becerra added.

The new vaccine approach, which may may be considered minor to non-medical observers, would change injections of the JYNNEOS vaccine from the subcutaneous route (delivery of the vaccine under the fat layer underneath the skin) to the intradermal route (delivery of the vaccine into the layer of skin just underneath the top layer). In theory, that would allow for greater accessibility of monkeypox vaccines as it increases the number of doses from each vial of vaccine.

The change was made amid criticism the Biden administration failed to meet the demand for vaccines during the outbreak and geographic inequity as certain metropolitan areas of the country have more access to vaccines than other places.

As The New York Times reported last week, the Biden administration has faced criticism for not moving quickly enough in acquiring and distributing vaccines, including bulk stocks already owned by the U.S. government manufactured in Denmark by Bavaria Nordic now being given to other clients.

“The government is now distributing about 1.1 million doses, less than a third of the 3.5 million that health officials now estimate are needed to fight the outbreak,” the Times reported. “It does not expect the next delivery, of half a million doses, until October. Most of the other 5.5 million doses the United States has ordered are not scheduled to be delivered until next year, according to the federal health agency.”

Biden officials, nonetheless, touted the numbers of vaccines and tests in response to monkeypox as a positive, acknowledging the 1.1 million vaccines being made available as well as delivery of more than 620,000 of those doses, deployment more than 15,000 courses of the monkeypox treatment and increasing the country’s capacity to administer tests on a weekly basis to around 80,000. Meanwhile, officials also promoted the change in approach in vaccines as means to allow greater accessibility to the shots.

Rochelle Walensky, director of the Centers for Disease Control & Prevention, promoted during the conference call the use of intradermal injections and said they’re “often used for TB skin tests and have been used for other types of vaccines.”

Although Walensky conceded some health care providers “may not be as familiar with intradermal administration” as they are with subcutaneous injection, she said CDC would make additional guidance materials available, including a clinician alert message to the Association of State & Territorial Health Officials, outreach to key clinician partners and an education resource video. The change in guidance, Walensky said, is for vaccine implementation in adults, but children — where single digit monkeypox cases have been reported — would continue to receive vaccination in the traditional subcutaneous approach.

But health experts aren’t responding with overwhelming praise to the decision to change the guidance on vaccine implementation from subcutaneous injections to intradermal injections, expressing concerns the new approach may be insufficient.

Jennifer Kates, director of global health & HIV policy at the Kaiser Family Foundation, was among those saying the change in guidance on vaccine approach was a mixed bag and told the Blade more data is needed to evaluate the effectiveness.

“As we saw with COVID, using these authorities in the context of public health emergencies is an important strategy,” Kates said. “In this case, this step will significantly expand access to vaccines for those most at risk. However, there remain questions about the effectiveness of this approach — real world studies are needed — and challenges to translating vaccines into vaccinations.”

Peter Marks, director of the Center for Biologics Evaluation & Research (CBER) at the Food & Drug Administration, was asked during the conference call with reporters to respond to concerns the change in guidance was insufficient and downplayed the novelty of implementing the vaccines through the intradermal route as “not at all new.”

“In fact, the reason why the Bavaria part of this equation comes from the fact that in Germany, this vaccine was given intradermally originally, in an effort to replicate the original version of the smallpox vaccine,” Marks said. “It’s been given to thousands of people intradermally, so this isn’t the first time it’s been done.”

Walkensky said the intradermal vaccine approach has been implemented amid policies among localities to implement a one-dose approach to the JYNNEOS vaccine through the subcutaneous route. (The D.C. government is one of the jurisdictions that had enacted a one-dose approach amid a vaccine shortage.) There is not data, Walkensky said, to support that approach and “in fact, if anything, there are data saying that that is not protective enough.”

“So by using this alternative strategy of intradermal dosing, not only do we have more doses, but we actually allow people to get two doses in a way that shows immunologic response that’s superimposable from the subcutaneous dosing,” Walkensky said. “So we have more doses, and in fact, we have the ability to doubly vaccinate people so that they get the protection that they need.”

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