DOMA's Immigration Imbroglio

News Analysis: The past week has been a wild ride for married, same-sex bi-national couples, but it's not over yet – and no one knows how it will end

The U.S. Citizenship and Immigration Services announced on Wednesday, March 30, that it had ended its temporary hold on cases in which married, same-sex bi-national couples were seeking a green card for the foreign spouse, applications denied in the past because of the Defense of Marriage Act.

The result came about after a hectic several days, involving daily developments and multiple explanations – including some overly optimistic outlooks from advocacy organizations – of what different developments meant.

Monica Alcota, an Argentine, could be separated from her wife, Cristina Ojeda, if DOMA leads to a denial of Alcota's green card application.
Monica Alcota, an Argentine, could be separated from her wife, Cristina Ojeda, if DOMA leads to a denial of Alcota’s green card application.
(Photo from Stop the Deportations.)

Questions do remain, however, about the specifics of why the general counsel of the Department of Homeland Security concluded that across-the-board abeyances for the applicable cases could not continue until the constitutionality of Section 3 of DOMA is resolved and whether the White House agrees with this decision.

On Feb. 23, Attorney General Eric Holder announced, in a letter sent to House Speaker John Boehner (R-Ohio), that he and President Barack Obama reached the conclusion that Section 3 of DOMA is unconstitutional and, accordingly, would no longer be defending it in court. One of the many consequences of that decision, a DHS official told Metro Weekly, is that DHS was examining whether the decision would have any impact on married, same-sex bi-national couples’ green card applications.

The USCIS received guidance on Tuesday, March 29, from the general counsel of DHS that led USCIS spokesman Christopher Bentley to say the next day that “the hold is over, so we’re back to adjudicating cases as we always have.”

Asked if that meant applications of same-sex bi-national couples would continue, once again, to be denied as they had in the past, Bentley said, “Correct, based on the enforcement of DOMA.”

As such, same-sex bi-national couples who are legally married in Connecticut or the District, for example, could be separated if another means for achieving a green card or visa for the foreign spouse is not possible.

If green card applications are denied and deportation proceedings begin, then deportations based on a law the president believes is unconstitutional – and over which the executive branch has wide discretionary enforcement authority – could resume.

Some – like attorney Lavi Soloway and Immigration Equality – do not think the denials (and, thus, any resulting deportations) need to continue to comply with Attorney General Eric Holder’s Feb. 23 statement to House Speaker John Boehner (R-Ohio) that “the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA….”

Explaining why he disagrees with the DHS view, Soloway said, “The Defense of Marriage Act is the law of the land, and that, therefore, no green card cases filed by bi-national gay couples can be approved. However, the agency can certainly withhold decisions on those cases for the time being and still be following both the letter and the spirit of the attorney general’s Feb. 23 directive.”

What’s more, DHS has taken similar action to prevent unnecessary hardship in the past.

In June 2009, the Department of Homeland Security issued “a temporary freeze on deporting widows and widowers of U.S. citizens” who had served in the armed forces. At the time, Homeland Security Secretary Janet Napolitano said, according to a Wall Street Journal report, “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues.”

The temporary abeyance – regardless of the reason – raised hopes for gay and lesbian bi-national couples seeking green cards that the president’s recent determination about the unconstitutionality of DOMA would lead to a similar freeze on their cases. Rep. Rush Holt (D-N.J.) raised the issue in a March 31 letter to Napolitano, asking for the same standard to be applied to married same-sex bi-national couples.

Now, however, the temporary hold has ended and deportations could go forward.

The questions that remain deserve answers.

Why have USCIS and, presumably, the general counsel at DHS concluded that indefinite abeyance – keeping married couples from being separated while DOMA’s constitutionality can be settled by the courts – is not permitted for gay and lesbian couples, as it was in the cases of non-citizen widows in 2009?

More importantly, does either President Obama or Secretary Napolitano believe deportations in these cases would represent a commonsense, practical solution to a complicated issue?

[CLARIFICATION: The ninth paragraph was edited to provide additional explanation and context.]

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