FAIL: DHS Secretary Janet Napolitano Blames DOMA for Refusal to Hold Green Card Petitions in Abeyance


Department of Homeland Security Secretary Janet Napolitano at the White House Press Briefing

Department of Homeland Security Secretary Janet Napolitano responds to a question put to her by journalist, Chris Johnson, of Washington Blade about putting “green card” petitions filed by married same-sex couples in abeyance until the Supreme Court rules on DOMA in June. (Chris Johnson’s question is at the 25 minute mark on this video.)

“The legal advice we’ve received is that we cannot put it in abeyance because DOMA is the law.”

Statement by attorney Lavi Soloway, co-founder, The DOMA Project:

The Defense of Marriage Act prevents USCIS from approving marriage-based petitions filed by lesbian and gay Americans for their spouses, because as long as DOMA is the law of the land our marriages cannot be recognized by the federal government. But DOMA does not prevent Secretary Napolitano from ordering that these green card petitions be held in abeyance. Putting these petitions on hold does not violate the spirit or letter of DOMA.

It is regrettable that the administration continues to cite the questionable “legal advice” that DOMA prohibits any remedies that would protect married binational gay and lesbian couples. Furthermore, this interpretation of DOMA is contradicted by their own action in the deportation context, where after two years of telling us that they could not issue a moratorium to stop “DOMA deportations” for that very reason, the administration finally issued guidance in October 2012 to prevent deportations of the same-sex partners and spouses of American citizens who would be otherwise eligible for green cards if not for DOMA.

It is time for the administration to do three things to help binational couples who are suffering incalculable harm every day because of DOMA:

  • put all green card cases filed by married, same-sex binational couples into abeyance until the Supreme Court rules on DOMA
  • extend humanitarian parole to all foreign partners/spouses who are stuck abroad and end the exile of lesbian and gay Americans caused by DOMA
  • offer “deferred action” to the foreign partners/spouses of lesbian and gay Americans who are currently in the U.S. without lawful status so that they may have lawful status and the right to work and provide for their families.

The administration has the power to stop DOMA from tearing apart LGBT families, separating partners from each other and their children. The Obama administration’s lack of movement on these interim remedies cannot be blamed on DOMA, and is inconsistent with President’s recent statements championing equality for lesbian and gay couples.

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.