March 29, 2011 9:51 am ET - by Carlos Maza
UPDATE: Tuesday, immigration officials in Washington clarified their position, stating that no policy changes had been made and that U.S.Citizen Immigration Services (CIS) was awaiting "final guidance from the general counsel's office" before deciding how to handle bi-national same-sex marriages. That "final guidance" appears to have been issued, and USCIS will continue denying same-sex bi-national couples green cards. According to Wednesday's Metro Weekly:
"The guidance we were awaiting ... was received last night, so the hold is over, so we're back to adjudicating cases as we always have," U.S. Citizenship and Immigration Services press secretary Christopher S. Bentley told Metro Weekly this morning.
The agency will continue to "enforce the law," he says, which means that the Defense of Marriage Act -- which prohibits the government from recognizing same-sex marriages -- prevents those green card applications from being approved.
Asked if districts would be able to put cases on hold while awaiting a final court determination about the constitutionality of DOMA, Bentley said, "No. The guidance is the same policy that has always been in place," which he said is to "enforce the law."
Asked if that means applications of same-sex bi-national couples would continue to be denied now as they had in the past, Bentley said, "Correct, based on the enforcement of DOMA."
A national shift in deportation policy appears to be underway. As first reported by the Daily Beast/Newsweek last Friday, the heads of two of the nation's 26 U.S. Citizenship and Immigration Services (USCIS) districts announced that they will be putting green card applications of bi-national married gay and lesbian couples on hold.
Christopher Bentley, the spokesman for USCIS, confirmed to MetroWeekly that “cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold in light of questions about the continued validity of the Defense of Marriage Act.”
The move away from immediate rejection of such green card applications for same-sex couples seems likely to affect future deportation proceedings as some judges begin to exhibit a similar reticence in deporting couples while the future of the Defense of Marriage Act (DOMA) is in doubt. Last week, a Manhattan immigration judge adjourned deportation proceedings against a married, bi-national same-sex couple, choosing instead to wait until the couple’s marriage-based immigration case is resolved in light of several lawsuits challenging the constitutionality of DOMA, the statute that has traditionally prohibited the federal government from recognizing legal, state-sanctioned same-sex marriages.
The announcement is good news for the thousands of married, bi-national gay and lesbian couples, as it may allow them to stave off deportation proceedings until DOMA’s constitutionality is ultimately[[resolved]] decided in federal court.
As Lavi Soloway, an attorney who has been actively involved in LGBT immigration issues, argues, legal uncertainty over the law is reason enough to put deportations on hold, even if DOMA is ultimately upheld:
“This is not about enforcing DOMA,” Soloway continued. “The question here is, What is the appropriate policy [for married binational gay couples] in the interim period when the law is subject to repeal and has been shown to be vulnerable to constitutional challenge in federal court?”
Soloway adds that, as legal challenges to DOMA make their way through federal courts, immigration lawyers will continue working to persuade government officials to treat married, bi-nationalsame-sex couples with lenience. Until DOMA is repealed or struck down in its entirety, however, these couples’ futures remain up in the air:
"Since the change of position by the administration on DOMA, we've had the opportunity to interact with immigration enforcement officials -- whether that be deportation officers or immigration judges -- and to bring to their attention the changing legal landscape for DOMA, and to advocate that the policy be put into place that essentially freezes cases in their status quo. Understanding, of course, that the Defense of Marriage Act remains the law of the land and we cannot achieve full equality for the bi-national couples we're representing [until Section 3 of DOMA is repealed or struck down]," he says.
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