[IMPORTANT WEDNESDAY, MARCH 29, UPDATE: "Immigration Official: 'The Hold Is Over'"]
The announcement on Monday, March 28, that the U.S. Citizenship and Immigration Services had issued guidance instructing its field offices to put on hold cases involving same-sex, married bi-national couples seeking a green card for the foreign spouse sent shockwaves throughout the immigration and LGBT communities. Further clarification from Department of Homeland Security officials, however, suggests a much more limited, nuanced decision that leaves the issue unresolved and couples' futures in doubt.
On Monday afternoon, USCIS spokesman Christopher Bentley told Metro Weekly, "USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues."
Despite statements from leading organizations – most prominently, Immigration Equality – suggesting that the cases would be held in abeyance until DOMA's constitutionality is settled, a DHS official told Metro Weekly on Monday night that the abeyance could last for as little as a week.
"[P]ursuant to CIS’s routine practice when there's a new law or regulation that will potentially affect their resolution of certain cases, they hold [the cases] in abeyance until they get the final guidance from the general counsel’s office," the official said. "DHS expects this issue to be resolved imminently."
After that abeyance has ended, the official notes, "[I]n individual cases, USCIS has always had the authority to exercise discretion on a case-by-case basis, in light of the unique circumstances of that particular case."
The reason for the abeyance in this situation was not a new law or regulation, but rather the Feb. 23 letter sent from Attorney General Eric Holder to House Speaker John Boehner, detailing Holder and President Barack Obama’s determination that sexual orientation classifications should be subjected to heightened scrutiny when examined by courts and that, accordingly, they determined that Section 3 of DOMA is unconstitutional and would no longer be defending it in court.
Were it not for Section 3 of DOMA, LGBT and immigration advocates have said, a U.S. citizen who is half of a same-sex bi-national married couple would be able to sponsor his or her non-citizen spouse for the purpose of obtaining a green card. DOMA, however, has led to the denial of such requests in the past.
The Feb. 23 letter, however, has led attorney Lavi Soloway and others like Immigration Equality to argue in various immigration-related proceedings that cases should be put on hold while the constitutionality of Section 3 of DOMA – currently being challenged in several court cases – reaches a final judicial conclusion, likely by the Supreme Court.
The DHS official tells Metro Weekly today, however, "Suspending all cases implicating DOMA until there is final judicial resolution on DOMA's constitutionality would run contrary to our obligation and to the AG's letter and therefore DHS cannot and will not do that."
In the Feb. 23 letter, Holder wrote, "[T]he 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, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality."
Explaining how DHS interprets that language, while noting that the final guidance has not yet been issued, the DHS official said on Monday night, "The president has directed that administrative agencies ... should enforce DOMA as they did before, that there should be no change in the enforcement. Following from that, we will continue to enforce it as we did before, which is, we enforced it when cases come up."
Soloway disagreed with the DHS interpretation, saying, "It would be my preference that USCIS approached the Feb. 23 letter as leaving open the opportunity to hold the cases in abeyance, because in my view holding the cases in abeyance does not contradict the mandate to enforce the Defense of Marriage Act."
Although nothing in Holder's letter states that agencies must enforce DOMA in the same precise manner as the agencies had done in the past, the DHS official's statements suggest the agency interprets the Feb. 23 letter as including such a requirement.
Asked if DHS could exercise discretion to hold all eligible cases until DOMA's constitutionality is resolved, the DHS official said on Monday night, "[T]hat may or may not be the case in the absence of the attorney general’s statement, but the attorney general – and, by his authority, the president – are the final arbiters of executive branch action, and the letter to Congress could not be any clearer: that the president has directed executive branch agencies to enforce DOMA as they did before."
Asked specifically if Holder's letter removed the authority to exercise such broad discretion, the DHS official said, "Whatever discretion we may have had before, we have for the last 15 years, enforced DOMA in our adjudications, so that's what we will continue to do."
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."
To that end, Immigration Equality executive director Rachel Tiven said, "Immigration Equality has asked the Department of Homeland Security and Department of Justice to stop denying applications from loving, married couples, and we hope that they will do the right thing and do that."
Calling a limited abeyance "unfortunate," Soloway today noted that, regardless of the length or type of abeyance issued by USCIS, "any incremental changes in policy with regard to holding these cases in abeyance must be viewed with extreme caution and is not a signal for bi-national couples to go out en masse and marry and file green card applications."
On a positive note, Soloway said, "It is important that DHS has identified that USCIS retains the case-by-case discretion, and that is an important point for our advocacy efforts."
Tiven added, "And we are confident that especially this Department of Justice, which found the Defense of Marriage Act so odious to the Constitution that it couldn't possibly bring itself to continue to defend it, will make every appropriate policy change that will follow that.
"We hope that in the future, soon, that when [DHS] gives the final guidance, that they'll do that right thing."