House Democrats have called on the Obama administration to issue more explicit guidelines stating that foreign-born same-sex partners of American citizens can remain in the country.
Rep. Jerrold Nadler (D-NY), House Minority Leader Nancy Pelosi (D-Calif.) and a total of 69 Democrats have written to the Department of Homeland Security and the Justice Department asking them to clarify that the administration’s recent shift in immigration policy to tackling high priority cases will mean that immigration proceedings involving bi-national same-sex couples will no longer be pursued by the administration.
“The recognition of LGBT family ties as a positive factor is a critical step forward in identifying key family and community ties to implement common-sense immigration enforcement,” the letter states. “We ask that you ensure that this recognition is reflected in the work of DHS and DOJ employees and the newly established working group in implementing your priorities for immigration enforcement.”
“Without specific guidance, it is unlikely that agency officers, agents, and attorneys making decisions about individual cases will be aware that LGBT family ties are a factor for consideration for exercising discretion in closing or not initiating removal proceedings,” the letter states.
Additionally, lawmakers ask that the working group include a member experienced in working with gay immigrants and their families to ensure that these factors are recognized in the working group’s case-by-case review of deportation cases.
“The vulnerability of LGBT immigrants — the historical stigmatization of whom both within and outside the U.S. is well-documented — makes knowledgeable review a necessity,” the letter states.
The 1996 Defense of Marriage Act bars the federal government from recognizing same-sex marriages which for the purposes of immigration means that an American-born citizen in a same-sex marriage cannot sponsor their foreign-born partner for citizenship. This has led to numerous cases where same-sex couples have been split up due to no fault of their own.
The Obama administration announced back in August that it would be implementing a new case-by-case review process so that the administration can determine which cases are high priority and which are low priority and pursue them accordingly. Obviously, for same-sex couples who have followed immigration rules closely and would otherwise qualify for spousal sponsorship, this could save gay bi-national couples from being separated.
This action served to build on a June 17 memo from the administration that spelled out immigration officials have discretionary powers to assess which cases they feel to be a priority — this order was not explicitly LGBT inclusive, so the administration’s later statement affirming LGBT inclusion is of considerable importance.
However, LGBT immigration groups have warned that without explicit guidance saying officials should not pursue foreign born partners in same-sex relationships who fulfill all other legal requirements for citizenship, it is likely that deportation cases will still occur and that even if they are abandoned further down the line they will still be costly and hurtful to those involved.
You can read the full letters over on the next page.
Dear Secretary Napolitano and Attorney General Holder:
We applaud the August 18, 2011 announcement that the Department of Homeland Security (DHS) plans to close many low-priority immigration deportation proceedings. We especially commend DHS for stating that it will consider the family ties of lesbian, gay, bisexual, and transgender (LGBT) people as a factor in determining cases that merit relief from deportation, including for gay and lesbian foreign nationals who are the spouses and partners of U.S. citizens and permanent residents. We write to you today with two requests that will further the enforcement of this important mandate.
The August 18 announcement made clear that the identification of high-priority deportation cases would be based on the June 17, 2011 prosecutorial discretion memorandum released by the Director of Immigration and Customs Enforcement, John Morton, and explained that a DHS and Department of Justice (DOJ) interagency working group would be created to review removal cases and prepare guidance for the field. Director Morton’s memorandum identifies “Factors to Consider When Exercising Prosecutorial Discretion.” These factors include “the person’s ties and contributions to the community, including family relationships” and “whether the person has a U.S. citizen or permanent resident spouse, child, or parent.” The memorandum does not, however, explicitly say that LGBT family ties, including those of spouses and partners of U.S. citizens and permanent residents, are to be included among the family relationships that weigh in favor of an exercise of discretion.
We ask that consideration of LGBT family ties be communicated in the guidance being prepared by the new DHS/DOJ working group. All field staff implementing the new policies in all relevant DHS and DOJ agencies must be made aware of this new consideration as they exercise discretion in deciding which new cases to place in removal proceedings and which current cases to close. Without specific guidance, it is unlikely that agency officers, agents, and attorneys making decisions about individual cases will be aware that LGBT family ties are a factor for consideration for exercising discretion in closing or not initiating removal proceedings.
Additionally, we ask that the working group include a member experienced in working with LGBT immigrants and their families to ensure that these factors are recognized and understood in the working group’s case-by-case review of all individuals currently in removal proceedings as well as its review of new cases placed in removal proceedings. The vulnerability of LGBT immigrants – the historical stigmatization of whom both within and outside the U.S. is well-documented – makes knowledgeable review a necessity.
The announcement on August 18 constitutes a major step forward in ensuring that immigration enforcement resources prioritize enhancing border security, national security, and public safety as well as in exercising discretion when warranted. The recognition of LGBT family ties as a positive factor is a critical step forward in identifying key family and community ties to implement common-sense immigration enforcement. We ask that you ensure that this recognition is reflected in the work of DHS and DOJ employees and the newly-established working group in implementing your priorities for immigration enforcement.
We appreciate your consideration of these two requests and look forward to working with you to address these important issues.
Jerrold Nadler, Nancy Pelosi, Barney Frank, Tammy Baldwin, Jared Polis, David Cicilline, Gary Ackerman, Shelley Berkley, Howard Berman, Earl Blumenauer, Lois Capps, Michael Capuano, Andre Carson, Judy Chu, Yvette Clarke, Joe Courtney, Joseph Crowley, Susan Davis, Diana DeGette, Michael Doyle, Eliot Engel, Anna Eshoo, Sam Farr, Bob Filner, John Garamendi, Raul Grijalva, Luis Gutierrez, Alcee Hastings, Brian Higgins, James Himes, Maurice Hinchey, Rush Holt, Michael Honda, Steve Israel, Jesse Jackson, Jr., Hank Johnson, Rick Larsen, John Larson, Barbara Lee, Sander Levin, John Lewis, Zoe Lofgren, Carolyn Maloney, Doris Matsui, Jim McDermott, James McGovern, Gwen Moore, James Moran, Eleanor Holmes Norton, John Olver, Gary Peters, Chellie Pingree, Mike Quigley, Charles Rangel, Steven Rothman, Lucille Roybal-Allard, Jan Schakowsky, Adam Schiff, Jose Serrano, Adam Smith, Jackie Speier, Fortney Pete Stark, Edolphus Towns, Niki Tsongas, Nydia Velazquez, Henry Waxman, Debbie Wasserman Schultz, Peter Welch, Lynn Woolsey