The US Department of Homeland Security

The issue of keeping married bi-national gay couples together in the United States is receiving fresh attention as LGBT advocates call for more action beyond a recent statement from the Department of Homeland Security saying being in a same-sex marriage is a factor in determining whether a potential deportee should be able to stay in the country.

On Thursday, Peter Boogaard, a DHS spokesperson, affirmed that the Obama administration would examine whether an individual is in a same-sex marriage when deciding to exercise prosecutorial discretion in a deportation for an undocumented immigrant.

“Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the Department of Homeland Security will continue to enforce it unless and until Congress repeals it, or there is a final judicial determination that it is unconstitutional,” Boogaard said. “However, when exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen.”

Boogaard’s statement marks the first time the Obama administration has said on the record it will factor in whether someone is in a same-sex marriage when determining whether to exercise prosecutorial discretion in a deportation case. The administration previously communicated in August 2011 that it would “consider LGBT families” under a policy in which officials would examine on a case-by-case basis the potential deportations of about 300,000 undocumented immigrants, but that was only said without attribution. The new statement also changes “LGBT families” to “same-sex marriage.”

Additionally, the words mark one of the few times that the Obama administration has said it would recognize married same-sex couples even though DOMA, which prohibits federal recognition of same-sex marriage, remains on the books. Last year, the Justice Department announced it would allow married same-sex couples to file jointly for bankruptcy; the Office of Personnel Management gave U.S. Ninth Circuit Court of Appeals employee Karen Golinski health benefits for her same-sex spouse, but both of those decisions were more limited in scope and the result of court orders.

The DHS statement comes in response to a letter that 84 House Democrats signed calling for DHS to issue guidance for providing prosecutorial discretion for married bi-national same-sex couples in situations where the foreign national in the relationship is undocumented and possibly in danger of deportation. Straight Americans can sponsor their spouses for residency in the United States through a marriage-based green card application, but that option isn’t available to gay Americans because of DOMA.

In a letter dated Aug. 3, the signers — who include House Minority Leader Nancy Pelosi (D-Calif.), Rep. Jerrold Nadler (D-N.Y.), and Rep. Mike Honda (D-Calif.) — ask for “written field guidance or a memorandum” indicating DHS will “consider LGBT family ties as a positive factor for the exercise of prosecutorial discretion.” It’s not the first time such a letter has been sent. Last year, 69 House Democrats sent a letter to DHS calling for similar action.

Despite the new statement from DHS, those behind the letter say they want more and a response from a DHS spokesperson doesn’t take the place of written guidance. Some behind the letter say the statement from DHS reflects a policy that is already understood to be in place.

Nadler, sponsor of the Uniting American Families Act, which would enable gay Americans to sponsor their foreign partners for residency in the United States, was among those saying more is necessary.

“I appreciate the response from DHS’s spokesperson on the issue of prosecutorial discretion, but the policy mentioned is the one I already understood to be in place,” Nadler said. “What my colleagues and I are asking, and have been requesting since 2011, is that those guidelines now be put clearly onto paper for DHS agents in the field so that there is no longer any confusion as to their mission vis-à-vis the deportation of gays and lesbians with demonstrated family and community ties in the U.S.”

Drew Hammill, a spokesperson for Nancy Pelosi, called the statement a “welcome development,” but echoed the sentiment that more was sought in the letter.

“It’s a welcome development that a DHS spokesperson is explicitly and publicly acknowledging that DHS’s consideration of family ties includes same-sex couples and spouses,” Hammill said. “We look forward to the written guidance that we expect would be a logical next step.”

Rep. Mike Honda (D-Calif.) (Blade file photo by Michael Key)

Honda, sponsor of the Reuniting Families Act, which has UAFA-inclusive language, said he “greatly appreciate[s]” the statement from DHS,  but also wants the policy clearly written in guidance for U.S. Customs & Immigration Enforcement officials.

“I greatly appreciate the Department of Homeland Security’s explicit verbal statement recognizing the value of same-sex relationships in immigration proceedings,” Honda said. “However, for the sake of those LGBT families, who — today or tomorrow — may face a tragic and senseless separation, their attorneys, and ICE field officials, an indubitable and unequivocal written policy and implementation guideline remain the best assurance for protection. I look forward to working with DHS to ensure that this becomes a reality.”

That sentiment was echoed by an LGBT advocacy group that focuses on immigration issues. Steve Ralls, a spokesperson for Immigration Equality, noted there’s nothing new in the statement provided by DHS.

“We’ve heard verbally before that they intend for their guidelines to be inclusive, but then, on the flipside of that, we’ve heard from field officers that they’ve never received that instruction in writing,” Ralls said. “Leader Pelosi and the other signers of the letter were very clear that they want to see that policy articulated in writing and distributed to the field, and that doesn’t seem to be the commitment that we’re getting in the statement today from DHS.”

Asked whether he thinks it’s significant that DHS is for the first time articulating this policy on the record, Ralls said, “Again, I think the real issue is who they say it to and not who says it. It needs to be a written policy directed squarely to the field. … That’s what we need. That’s what Nadler, Honda and Pelosi wanted. That’s not what DHS delivered today.”

The exception to the nonplussed reactions was Lavi Soloway, an immigration attorney and co-founder of Stop the Deportations, who called the news “a giant step forward in the fight against DOMA” and the first formal recognition from the Obama administration of married same-sex couples.

“This move is significant beyond the immigration context, as it constitutes the first time any agency of the federal government has created a policy explicitly recognizing same-sex marriages,” Soloway added. “By giving legal effect to the lawful marriages of gay and lesbian couples, the Obama administration has demonstrated what we have argued all along to be true: that executive branch agencies can create policy to mitigate the discriminatory impact of DOMA on gay and lesbian binational couples, even while DOMA continues to prevent approval of those couples’ green card petitions.”

Still, Soloway said he wants to see the policy articulated in guidance, saying, “To ensure that our families are protected with consistent application of this newly inclusive prosecutorial discretion policy, it is crucial that detailed written guidance encompassing this official announcement be issued without delay.“

Despite these calls for having instructions explicitly written in guidance, DHS maintains agents and attorneys have been trained to know that LGBT families and same-sex couples are covered under the new policy. Since the DHS announcement last year, ICE has already announced that several bi-national couples have been taken out of the deportation pipeline, such as Anthony Makk and Bradford Wells of San Francisco.

DHS didn’t respond to a request to comment on reactions from lawmakers and advocates to the statement provided last week.

Letter renews call to hold marriage-based green cards

The House Democrats’ letter isn’t the only one that the Obama administration has received recently on married bi-national same-sex couples. Immigration Equality delivered a letter to the White House and the Justice Department on Friday asking for the marriage-based green card applications to be held in abeyance now that a time for when the Supreme Court will review DOMA has become more clear.

The letter, signed by Immigration Equality Executive Director Rachel Tiven and Legal Director Victoria Neilson, is dated July 26 and renews an earlier request from the organization that was denied by the Obama administration, saying the administration should reconsider because “it is now clear that a final judicial determination on the constitutionality of DOMA is imminent.”

“[I]t is now clear that the Supreme Court will render a decision on the constitutionality of Section 3 of DOMA within a year. In the meanwhile, if USCIS continues to deny the applications of lawfully married couples, lesbian and gay immigrant families will continue to suffer irreparable harm through forced separations, forced exile, or the accrual of unlawful presence in the United States,” the letter states. “Holding green card petitions and applications without adjudicating them will preserve agency resources and prevent real harm to real families until the Supreme Court resolves this issue next year.”

Among the reasons cited in the letter for a likely imminent decision from the Supreme Court on DOMA are rulings against the anti-gay law from the First Circuit and district courts as well as multiple pending petitions asking the high court to take up the law.

The letter is dated the day after U.S. Chief Judge Carol Bagley Amon of the Eastern District of New York placed a stay on Immigration Equality’s lawsuit against DOMA, Blesch v. Holder, pending resolution of another DOMA lawsuit, Windsor v. United States, before the Second Circuit Court of Appeals.

The Justice Department didn’t respond to a request for comment. A White House spokesperson deferred to DHS, which provided the same statement in response to the letter signed by House Democrats. As of Monday, Immigration Equality has said it hasn’t yet received a response from the Obama administration.

Soloway also said putting marriage-based green card applications in abeyance for same-sex couples is the best way for the Obama administration to ensure these families can remain together in the United States without fear of separation.

“To address this immediate, irreparable harm, the administration should stop denying green card petitions filed by gay and lesbian binational couples and instead put those cases on hold pending a ruling by the Supreme Court on the constitutionality of DOMA expected next year,” Soloway said.