Obama’s New DOMA Dilemma
April 20, 2011 12:51 pm ET by Kerry Eleveld
As March came to a close, Edwin Blesch rushed to complete a petition that would allow him to sponsor his foreign-born spouse, Tim Smulian, for residency. Like many married bi-national couples, Blesch and Smulian knew the government had recently changed its handling of such petitions from same-sex couples due to serious questions surrounding the constitutionality of the Defense of Marriage Act, which prohibits the federal government from recognizing their marriage.
“A lot of us were trapped in this 2-3 day window,” explains Blesch, who met Smulian twelve years ago in South Africa where they eventually married. “Then they pulled the rug out from under us.”
By ‘they,’ Blesch means the administration officials who decided that U.S. Citizenship and Immigration Service (CIS) agents – who had stopped processing marriage-based immigration cases involving same-sex couples – should revert back to their previous policy of rejecting the petitions. The couple and their lawyers at Immigration Equality had hoped that once their sponsorship petition was filed, their case would be put on hold indefinitely, which would allow Smulian to remain in the country while the courts made a final determination on DOMA.
News first started breaking that CIS agents had stopped adjudicating the cases of lawfully married bi-national same-sex couples on the Thursday and Friday of March 24 and 25. A district director of the Washington CIS office confirmed to Newsweek/The Daily Beast that agents had put the cases on hold, but it was unclear whether this was a uniform national policy or a discretionary policy being applied at individual district offices across the country.
The temporary change in procedure came on the heels of a Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama deemed DOMA to be unconstitutional. Immigration advocates held their breath during those late days in March as a spokesperson for CIS, Chris Bentley, confirmed the cases were being suspended until they could get clear guidance on how immigration agents should handle petitions from American citizens to sponsor their same-sex spouse for residency – a form known as an I-130 in immigration parlance.
But by the following Tuesday, March 30, Bentley announced the hold was over and CIS agents were to proceed with the cases as they always had. Marriage-based petitions for spousal sponsorship filed by same-sex couples would resume being processed and DOMA would prohibit them from being approved.
Weeks later, Bentley told Equality Matters that the “proactive” step of holding the cases nationwide, which he estimated lasted “about a week,” was common practice for the agency in situations where the legal circumstances surrounding those cases have changed.
In this case, the Department of Homeland Security (DHS), which houses CIS, was weighing two key factors: 1) the president had recently declared DOMA unconstitutional; and 2) Holder’s February letter also advised that the “EXECUTIVE BRANCH will continue to enforce the law” until either the courts could make a final determination on the statute’s constitutionality or Congress repeals it.
Bentley said the total number of cases held in abeyance amounted to about 10 to 20 nationwide.
“The field was instructed to hold these cases and that was nationwide,” he said.
“Whenever there is any type of legal issues at stake that could potentially affect the way we do our work, we ask for the guidance to make sure we are doing our job properly,” Bentley explained. “We held cases in abeyance to make sure our policy was consistent. Once we received that legal clarification, then we again started adjudicating the cases, enforcing again the Defense of Marriage Act as directed by the president.”
CIS has not publicly released the written guidance they received from the general counsel at DHS and Bentley said the agency would not do so because it was “privileged” attorney-client information.
But Crystal Williams, executive director of the immigration advocacy group the American Immigration Law Association (AILA), said the official hold caught her off guard.
“To be honest, the fact that they were holding cases in abeyance initially was a surprise to me. They’re not usually that bold,” Williams said, who has been with AILA for 12 years. “When they reversed themselves, I said, ‘OK, this is the agency that I know.’”
Even though Bentley says the door is now closed, Williams sees an opening, adding “it’s clear” there was a battle happening internally at DHS.
“Our history on a number of these issues is that you hear ‘no’ and ‘no’ and then quietly, a couple of weeks later, suddenly there’s a ‘yes’ somewhere,” she said.
Her organization along with 81 other immigration groups sent a letter earlier this month to DHS and two other key agencies urging the administration to again suspend adjudication of green card applications and deportation proceedings involving legally wed same-sex spouses “until there is a final judicial or legislative resolution regarding DOMA.”
Williams sees the coalition support for this issue as particularly strong since letters of this fashion typically draw closer to 50-60 signatories.
But the groups are not alone in their desire for a change in policy. She says these cases are “extremely important” to government adjudicators whom she knows personally and who want to approve green card applications from same-sex couples.
“Anybody who makes decisions on behalf of the government long enough will eventually be put in a position where they make a decision that they find abhorrent,” she said. “This is one where they find some of that happening.”
Williams, along with most advocates on this issue, concedes that approving applications could be legally construed as violating DOMA, which prohibits the federal government from recognizing marriages between same-sex couples. But she adds that simply holding the cases – thereby preventing deportations while the constitutional issues are settled – poses no such legal conflict.
“When you see the administration say that it believes that a particular law is unconstitutional but then continue to administer that law when it doesn’t have to, that’s particularly outrageous,” she said. “They don’t have to put them through to denial and then push them to deportation.”
In fact, CIS agents have particularly heavy caseloads and they could easily focus their energies elsewhere.
“There’s no rule on how long it takes an agency to process a case – they have the discretion to allocate their resources so they should work on high-priority cases,” explains Lavi Soloway, an immigration attorney who has filed 10 cases involving foreign-born same-sex spouses who are in deportation proceedings.
Soloway saw an opening back in July of last year after federal district court Judge Joseph Tauro struck down section 3 of DOMA as unconstitutional in two high-profile challenges to the law.
“We felt that it was the right time to begin reframing the issues that bi-national couples deal with as issues that relate to DOMA,” said Soloway.
In the past, gay bi-national couples had primarily looked to the legislative branch for relief through legislation that would allow American citizens to sponsor their foreign-born same-sex partners. But by focusing on DOMA in the context of immigration courts – which is part of the Department of Justice – the issue would be placed squarely with the executive branch rather than leaving it entirely up to Congress.
“The primary mission is to stop the deportations, and the power to immediately stop the deportations lies with the executive branch; therefore, the appropriate place to bring this advocacy is in the immigration courts,” Soloway explains.
Following the Tauro decision, Soloway specifically sought out same-sex couples in which deportation proceedings had already begun for the foreign-born spouse in the relationship. He limited his cases to those individuals specifically because he did not want to draw anyone into a proceeding that might endanger them.
But by filing an I-130 on their behalf, he was deliberately using the petition as an advocacy tool.
“It was understood by every couple that the likelihood would be that their petition would ultimately be denied,” he said. “But in that denial, would be the first tangible evidence of the federal government actively discriminating against them because they were gay.”
But by January of this year, only one of the 10 petitions he had filed on behalf of his same-sex couples had been denied. That’s when Soloway began to wonder if the government had suspended adjudication of those cases.
“By the time the Newsweek story broke, we were beginning to suspect that the I-130s were taking a little longer to process than usual,” he said. After word spread of the temporary hold, Soloway’s firm received approximately 200 calls and emails from gay bi-national couples.
“They were almost all the same – a couple that wanted to know if this was finally a time that they could file a green card application on the basis of their marriage,” he said. But Soloway feared that identifying anyone in an application who might be staying in the U.S. illegally or even on a temporary visa could put them in jeopardy.
“I advised them that the risk of filing, even with this encouraging news, was that the individual could be placed into a removal proceeding,” he said.
After CIS announced the hold was over, another of Soloway’s I-130s was denied.
But one of his cases produced a positive result. An immigration judge in New York adjourned the deportation proceedings for Monica Alcota of Argentina due to the legal ambiguities surrounding DOMA and the fact that the sponsorship petition filed by her American spouse, Christina Ojeda, continues to be processed.
Overall, Soloway’s advocacy appears to have helped focus attention on the issue since he filed 10 cases in total and CIS spokesperson Chris Bentley estimated the number of cases once held in abeyance at 10-20 nationwide. It’s worth noting that, typically, same-sex bi-national couples wouldn’t have been filing I-130s at all since they were almost certain to be rejected.
The government’s decision to resume processing the cases has raised the question of whether the executive branch should be deporting a legally wed foreign-born spouse based on a law that the president himself has declared unconstitutional.
Scott Titshaw, a professor of law at Mercer Law School, views the administration’s decision to proceed with the cases as politically motivated rather legally based. He agrees with Crystal Williams’ assertion that, from a legal standpoint, simply holding the cases in abeyance – and therefore halting deportations -- would not violate DOMA. But he also believes the administration is trying to be consistent with its promise to continue enforcing the law.
“It’s more of a political decision than something that they were constrained to do legally,” said Titshaw, who has been working on the cases of bi-national same-sex couples for about 15 years.
On this point, CIS spokesperson Bentley was perfectly clear.
“We’re continuing to enforce the statute exactly as instructed by the president,” he told Equality Matters. “I see us following very closely as we always do the instructions of the commander in chief.”
And it’s that reality that has confounded Blesch, who describes himself as a “big Obama supporter.”
“I’m very pissed with him over this,” said Blesch, who is HIV-positive and in compromised health after experiencing heart problems and suffering several small strokes. “We feel he hasn’t shown leadership on this issue.”
Blesch, 70, and Smulian, 65, were lawfully wed in South Africa, a marriage recognized by New York State where they live in Long Island for six months at a time. That’s when Smulian’s visitor visa runs out and he must leave the country. The couple has played by the U.S. government's rules for 12 years now, spending 6 months in the U.S. and six months out (typically in Canada or South Africa, Smulian's country of origin). But Blesch’s health conditions are making it increasingly difficult to travel, and Smulian serves as his main caregiver.
The most recent developments have made their situation particularly precarious. Smulian, who must leave again in July, has always told border control officials upon entry into the country that he is here on a visitor’s visa and does not intend to stay. But now, the I-130 petition will serve as written confirmation of his desire to remain in the country, which might preclude him from gaining reentrance.
“So we’re in a dangerous position that we’ve never been in before,” said Blesch.