Yesterday, the White House and the Department of Homeland Security confirmed: their understanding of family includes LGBT families.
The White House and DHS said that LGBT family ties, including those of gay spouses and partners, will be considered as DHS conducts a case-by-case review of the approximately 300,000 immigrants currently in deportation proceedings to determine which cases are high priority and low priority. DHS plans to close many low priority deportation cases. DHS and DOJ will also utilize these factors in determining whether to place someone in deportation proceedings in the future, or to close a deportation case. Immigrants whose cases are closed will not be subject to deportation in the future “unless the facts of their case substantially change.”
Today’s announcement from DHS appears to be very good news for LGBT couples who are facing imminent separation via a removal order or deportation. LGBT spouses and partners will likely benefit from more of the deportation cancellations and delays that we have seen a few of in the last few months. This is truly groundbreaking, as Immigration Equality does not know of cases in which deportations were cancelled or delayed due to lesbian or gay partnerships or marriages prior to the administration’s decision that DOMA is unconstitutional.
We must all work to ensure this important development makes a difference for real families.
- It’s terrific the administration and DHS consider families to include LGBT families. We must make sure the field officers and attorneys prosecuting cases know that so they actually exercise discretion in the field when determining whether to drop or commence deportation proceedings. LGBT families were not listed in a long list of factors for consideration for discretion in a June memo that this new memo will be based on, as we had requested. So we must continue to press for them to put this new policy in writing.It IS very helpful that the New York Times and many other media sources put it in their coverage. This will help educate immigration practitioners around the country and aid attorneys advocating for LGBT immigrants that have American spouses or partners. Nancy Pelosi put it in her press announcement about the new policy also. She definitely shows that immigration is a DOMA issue and vice versa!:”It is my hope that today’s action by the Administration will result in the suspension of immigration proceedings against gays and lesbians who have petitioned for their spouses, such as my constituents, Bradford Wells and Anthony John Makk, who face separation because of the discriminatory Defense of Marriage Act.”
- This is not the moratorium on the deportation of lesbian and gay spouses and partners that the Washington Post editorial called for this week. It will help families on a case by case basis only.
- This change does not impact the many couples who need relief but have not received a removal order or deportation notice. It does not help LGBT folks filing for a spousal-based green card for their lesbian or gay spouse, who want that application held in abeyance (as so many of you have asked in signing our petition at which you can find at the Action Fund site) so they can stay here legally. Instead, they will continue to live in the constant worry that they are or will be out of status, and could be picked up by police participating in Secure Communities or an ICE agent who may or may not have heard about the new guidelines, and placed into detention and/or deportation proceedings. Or, if the Utah, Alabama, or Georgia laws go into effect, the US partner could be criminalized for “harboring” their loved one. As our legal director Vickie Neilson said in a recent blog: “What better proof do we need that our immigration system is broken than that the response of many [to the case of Bradford Wells and Anthony Makk] — friends and foes alike — has been “why doesn’t he just fall out of status, violate the immigration laws, and then some day, immigration may exercise discretion on his behalf to not deport him? ”Many Immigration groups share the concern that this new process does not outline an affirmative process by which immigrants can win relief, only a way to address deportations. This is extremely significant. For example, someone whose deportation is cancelled based on this new process will be able to apply for work authorization, but someone who is simply undocumented and not facing deportation cannot. Similarly, an LGBT spouse/partner whose visa is expiring can do nothing under this new policy to stay in status.
- DHS said that there will be “the same narrow mechanisms” in place to allow LGBT spouses and partners they have already deported to return to the US. Nonetheless, parole, the mechanism that allows people to return to the US, is one of the areas which the DHS June memo outlined should be a process in which DHS employees can exercise discretion. Immigration Equality only knows of one gay spouse who returned via humanitarian parole following a deportation, after major advocacy by Senator Kerry.
- Administrative relief is a critical interim solution for our families. But, it can be reversed by any future president. We must continue to fight to end the discrimination against our families in immigration, by pressing for passage of the Uniting American Families Act (UAFA). Urge your members of Congress to cosponsor and support UAFA at the Action Fund site.
Thanks for all of your terrific advocacy for inclusion of LGBT families and gay and lesbian spouses and partners in any immigration reform. The hard work had an important payoff yesterday! Please continue to watch this blog or follow us on Twitter and Facebook. The updates are coming fast and quickly so please stay connected.