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Lesbian and gay couples have fought for inclusion in our family-based immigration system for decades. Today, the president himself agrees that discrimination against married bi-national couples is unconstitutional. President Barack Obama’s changed position on DOMA has encouraged bi-national couples and elected officials to demand that the administration implement administrative remedies until DOMA’s fate is resolved by Congress or the Supreme Court.
The pioneering bi-national couple in this movement were Tony Sullivan and Richard Adams, an Australian and an American, who met in Los Angeles in 1971. When, in 1975, a Boulder city clerk announced that she would issue marriage licenses to same-sex couples, they rushed to Colorado and were married. Richard immediately filed a green card petition for Tony, which was promptly denied. The denial letter consisted only of one offensive sentence: ”You have failed to establish that a bona fide marital relationship can exist between two faggots.” The couple sued and lost. Today, the decision in their case, Adams v. Howerton, is cited along with DOMA each time Citizenship and Immigration Services denies a green card petition filed by a married gay or lesbian couple. Denial letters are now much more polite, but the discrimination is exactly the same.
DOMA became law in 1996, defining marriage for all federal purposes as between a man and a woman before lesbian and gay couples could marry in any jurisdiction in this country. It now stands as the sole obstacle for married bi-national couples desperately seeking to resolve their immigration status. Since DOMA’s passage, almost all efforts in the fight for immigration equality have avoided the issue of marriage, instead focusing on a legislative solution that would expand family-based immigration to allow lesbian and gay U.S. citizens and green card holders to petition for their foreign-born partners. The Uniting American Families Act (UAFA), which was reintroduced in Congress with 100 co-sponsors on April 14 by Rep. Jerrold Nadler (D-N.Y.), would achieve just that. A companion bill was introduced by Sen. Patrick Leahy (D-Vt.) with 19 co-sponsors in the Senate. It was the seventh time around for this gay immigration bill, but, despite steadily increasing support, it is unlikely to move forward in this Congress.
Given the president’s new position on DOMA, the frontline of the battle has shifted to the executive branch where Homeland Security and the Department of Justice can and must develop short-term remedies for bi-national couples. With this goal in mind, Rep. Zoe Lofgren (D-Calif.), ranking member of the House Subcommittee on Immigration – as well as a former immigration lawyer and professor of immigration law – wrote a letter to Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder, urging them to stop the deportations of spouses of lesbian and gay Americans and to hold green card petitions and applications filed by married same-sex couples in abeyance; in other words, to postpone decisions until DOMA’s fate is determined. Lofgren’s letter reflects the opinion of immigration advocates like myself that the executive branch has the discretionary power to protect all married bi-national lesbian and gay couples, without violating DOMA. The letter gathered the signatures of 48 members of the House, including all Democrats on the Immigration Subcommittee. It came only days after a letter by Sen. John Kerry (D-Mass.), signed by 12 senators, called on Napolitano and Holder to do the same.
While DOMA is still the law of the land and must be enforced, it cannot be an excuse for failing to institute administrative remedies such as ”abeyance” to put a halt to deportations, separations and exile of lesbian and gay bi-national couples. This administration has a duty to ensure that our families are not torn apart because of an unconstitutional law that it refuses to defend.
The Obama administration has the power to make this happen and must act now.
Lavi Soloway is an immigration lawyer and LGBT rights activist. He is co-founder of Stop The Deportations-The DOMA Project and Immigration Equality.
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