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

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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.

BRING THEM HOME: Binational Gay Family Exiled to UK Urges President Obama to Grant Humanitarian Parole

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My name is Sarah. I’m 33 years old and a former resident of Tiverton, Rhode Island. I grew up in Rhode Island and attended Tiverton public schools from kindergarten until my graduation from Tiverton High in 1997. I went to Rhode Island College for four years as an Elementary Education major with a focus on children with Special Needs. I worked for Girl Scouts of Rhode Island (GSRI) every summer for almost 10 years and did hundreds, possibly thousands – I never counted, hours of volunteer work for GSRI as well.

It was through my work with Girl Scouts that I met my wife, Emma. In 2001 Emma, who is a British citizen, worked for the summer at Camp Hoffman in Kingston, Rhode Island. I was also working there as a lifeguard. We spent the summer as co-workers, and towards the end of her time in the States we grew close. When the camp closed for the summer in August, she spent the next two months living with me and my family until her visa expired in October. After an extremely emotional and teary departure that month, we knew that this was a relationship we would try anything to continue. Through letters, emails, and phone calls our relationship grew, and for the next 4 years, we spent all our spare money flying back and forth over the “pond” to see each other as often as possible.

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I spent summers here in England, meeting her friends and family, only to have to return back to Tiverton to be back at my job in the schools I was working in. She would use up all of her vacation days at work to spend time with my family and me back in the States. In 2005, after years of very-long-distance relationship work, we had decided that we needed to either move to be with each other, or end the relationship that we had strived to build. We discussed it, and decided it would be best if Emma moved to America.

It never crossed my mind that it wouldn’t be possible due to the fact that we are gay. I learned that immigration rights are a federal issue, and even if we could get married in the State of Rhode Island, with a certificate just as any other married couple had, we would not be eligible for a spousal visa. She came to the US for a year on a student visa, but we couldn’t afford the international tuition for more than a year. Our world fell from under us. We had set our minds on Emma moving to America for so many reasons – I had a full time job in special needs education that would pay the bills and insure us both, my family was supportive of our relationship, Emma would be able to work or continue with college as well. We never fathomed that it wouldn’t work due to the discriminatory Defense of Marriage Act (DOMA). We still intended to get married and eventually live together; we were planning our future just like any young couple in love.  However, my government and DOMA forced me into quitting my job, leaving my family, and moving to England so that I could be with my wife.

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We married in the State of Massachusetts, and two months later I made the flight to my new home here in England. That was in 2006.  I have now lived her for almost 7 years, and we have an almost three-year-old son together. He’s a dual citizen, as the UK recognizes our union for what it is, and he is therefore eligible to benefit from it. To be completely honest, neither of us wants to live here. My line of work lets me live anywhere in the world, so returning to the States wouldn’t be a financial burden. But right now, we do not have a path forward to returning to our home.

President Obama said on the White House website, “that Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country.”  But Emma and I were forced into that very position and are living this reality every day.  If President Obama would direct the Department of Homeland Security and the Department of State to begin offering exiled same-sex couples humanitarian parole, my wife and I could start our lives in Rhode Island with our son; our home.  There may not be a final resolution until DOMA is struck down by the Supreme Court or repealed by Congress. But we are sharing our story because our marriage and our family and our future is worth fighting for now, and because our son deserves to be raised in America.

We join The DOMA Project in asking you to help spread our story and fight for humanitarian parole to end the exile and separation of gay binational couples. We are asking that you tweet our story to my congressional representatives in Rhode Island, urging them to advocate for humanitarian parole to the White House now. We should not be required to wait another day to come home.

Thank you,

Sarah & Emma

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Emily & Amanda Fight for Their Future, Inclusive Immigration Reform, Abeyance for Green Card Cases

Our Story

Amanda and I met in college. I was an incoming freshman and she was a senior. Almost instantly, she wanted to be my friend and invited me to parties, she invited me to church or even to her house to have coffee and study. I turned her down so many times to hang out with my fellow freshmen that I had recently befriended. I’m really not sure if I was anxious that a senior wanted to hang out with me or if I was just comfortable with the friends I had already made. Regardless, her persistence eventually prevailed and we became close friends. We would text and message each other through Facebook quite often. Even when I went home for the summer, I found some excuse to visit her or for us to meet up to go to a concert.

The next school year, I spent most of my time hanging out with her. My address was at the dorms but I practically lived at her apartment. I actually grew as a person spending so much time there. I’m a bit of a loner but for some reason I felt no pressure to hang out with her, it was just something that I wanted to do. We made meals together, watched way too many movies, and I actually did my homework.  Not only did she motivate me to be a better student, she challenged me to be a more rounded individual, thinking outside my tunnel vision mind.

The college we went to has a month off for winter break. That winter, Amanda used this time to go home to Brazil to renew her student visa and her passport. There wasn’t a day that entire month that Amanda and I didn’t email, communicate by Facebook, or send instant messages to each other. I think I was on the computer the entire break. We expressed how much we missed each other and how she couldn’t get back fast enough. After what seemed like forever, she arrived at the airport. It was awesome and awkward at the same time. Our chats over break had become steadily more affectionate, more so than I had ever been with anyone else.

When we got back to her apartment we sat on opposite ends of the couch and I remember her saying, “Hey.”  While she patted the space on the couch next to her she said, “come here.” I scooted over and she hugged me. It was the most amazing hug I’ve ever felt. Everything went back to normal.  Later that night we were talking and she confessed that she loved me more than a friend and I couldn’t have agreed more.

Since we were each other’s first girlfriend, it took a little getting used to. I’m a people pleaser and was very close to throwing everything away because I was afraid of what other people would think. After understanding that our feelings were very much real, our fears of what misinformed people might think faded, and we decided not to turn our backs on this amazing connection we found with each other. Even still, trying to figure out our relationship, hiding out of fear, and dealing with our friends’ and families’ reactions. But we have made it four years and are still happier than ever.

She knows my irritated face when I’m at the mall and get frustrated, and I know that she has a short fuse and when it starts burning I should just let her be and she’ll come back to life when she’s ready.  She loves my freckles and my slight dimple on my left cheek and I love the way she rocks and hums while she is cooking a delicious dinner. I know that this is real love and even if we bicker – we miscommunicate a lot – we get over it in about a minute and end up laughing about how ridiculous it was. We have a give and take relationship just like any functional one.  Our love is no different from any other. We just happen to both be women.

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On my birthday in 2011, I came out as a lesbian to my parents and told them about my relationship with Amanda. I think it helped that they already knew and loved her. Of course there was a transition time where they were a bit confused and curious, but I think it went rather well. Soon after that, Amanda told her parents through email. They were very understanding as well. We are blessed with amazing families.

In November, we decided that we should get married. It was just the two of us and it was a wonderful vacation away from real life. We are going to eventually throw a reception ceremony for our friends and family, but we want to know what is going to happen in this next big step in our lives. Where are we going to live? Amanda has been in school for the past eight years as a foreign student, which allowed her to stay in the U.S. She will graduate in May with her third degree. After that she has a very short window to find a job or leave the United States.

It is our dream to continue to build our lives together in the United States; I already have a great job and we both speak the English language. I could move to Brazil, because Brazil has for years permitted the immigration of same-sex partners of Brazilian citizens, but I don’t speak Portugues and the transition would be very difficult for our careers. Because of the Defense of Marriage Act our marriage is not recognized by the U.S. government, and I cannot sponsor Amanda for a green card. Unlike Brazil, the United States denies the existence of our relationship and provides no way for her to stay here despite the years we have been together and our marriage.

DOMA has forced me to consider leaving the United States, which is a very difficult decision when you consider that it is like my country is evicting me from my own home because I am gay.  Still, we want to be together above all else. We have talked very seriously of going to Brazil. We hired a lawyer to make sure that we have everything we need for me to move to Brazil when Amanda graduates. For us to move to Brazil would mean that I lose a secure job.  I would also have to become fluent in Portuguese before re-starting my career and Amanda would have to score a stellar job to keep us going while we transition. With her amazing credentials here it seems very likely that she would easily find a job in the US, which would carry us through the short term. But a job that would sponsor her for a green card? Unlikely.  If it weren’t for DOMA, I could sponsor her as my wife and she could stay here.

Don’t get me wrong, Brazil looks like an amazing country and I would love to consider living there at some time in the future when doing so would truly be a choice. But why should we be forced to take that route? Why can’t we stay in the United States as we wish?  I have two jobs.  I pay my taxes.  I’ve never done anything illegal.  I have a great relationship with my family.  I’m honest – too honest for this world. And above all: I am a United States citizen.  However, because I want to spend the rest of my life with a woman from another country, I have to leave my own to be with her? She is the most hardworking person I’ve ever known. She has three degrees for goodness sakes!  She will contribute great things to this country. But as many lesbian and gay Americans soon learn, the “land of the free” is only free for some.  I recently read the status of an old friend on Facebook. She said, “Congratulations to my Colombian turned American fiance for passing his citizenship test today. Love you!” I was excited for her but also heartbroken because that could be me if it weren’t for DOMA. One day I hope to say the same thing about my dear Amanda.

We are so thankful for what The DOMA Project is doing to empower us and the thousands of other same-sex bi-national couples around the world. Now, as oral arguments at the Supreme Court draw near and Congress debates Comprehensive Immigration Reform (CIR), I believe that it is more important than ever to get involved by sharing our own stories and those of others.  Even if I were not in a relationship with Amanda, I would support this project to the fullest.  For that reason, I hope you will consider sharing our story and those of other couples, even if you’re not a same-sex binational couple. Most Americans would agree that it’s crazy that this is even an issue; but far too many are still unaware that it is an issue. We have the power to change that, and the time to do it is now.  It’s urgent that Congress include protections for LGBT families in CIR and that the Obama Administration place all green card petitions from our families in abeyance until DOMA’s fate is decided either at the Supreme Court or by Congress.  Ours is just one family out of thousands that cannot afford to wait any longer for change.  Please join us in this fight. Help me keep Amanda in this country, and keep all of our families together. Share your story today and circulate this petition to President Obama.

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After a Valentine’s Day Wedding, Ray and Benjamin Are Ready to Fight DOMA, File Green Card Petition


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Our story begins in May 2011, when I was passing the time in a generic internet chat room. At first, all I could see was that Ben was 23 years old and from the UK.  By chance, somebody mentioned something about a musician that both Ben and I liked, prompting us to begin our first conversation, which lasted well into the night. After close to ten hours of talking, I returned to reality and thought about this stranger with whom I felt such a sudden and strong bond. Being from Texas, it was very rare that I had the opportunity to be so open with someone and talk about life, being gay, and growing up in such a religiously influenced part of America. It was from this point our daily video conversations via Skype and phone calls back and forth began. We spent the next few months getting to know each other, talking daily, learning more about things we had in common, backgrounds, thoughts on growing up on different continents, our passions and ambitions, etc. Discussions became plans, and plans turned into actions.

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In September 2011, Ben made arrangements to come to Texas on a six month tourist visa. He arrived in mid-September and over the next six months we fell in love. As Ben’s six months here were coming to an end, we discussed our options as a gay binational couple, which seemed quite limited. Ben was aware that the UK had recently begun to recognize civil partnerships.  After a lot of emotional ups and downs and some confusion, we decided that I would return to the UK with Ben and get to know his friends, family, and the place he called home. Our relationship continued to strengthen; we overcame many obstacles. Finally, on June 1 2012, Ben and I had a wonderful civil union ceremony. We felt a wave of optimism immediately after exchanging our vows. After consulting an immigration attorney in Britain we were told that due to recent changes in the immigration requirements applying to us as a couple, Ben wouldn’t be able to sponsor me for a visa to stay there with him permanently because he could not show he earned sufficient income to sponsor me. So despite the UK having provisions that allowed for the immigration of same-sex partners, this option was not open to us, despite being in a legally recognized British civil union. We had discussed our options of staying together in America, but we were already aware that the Defense of Marriage Act (DOMA) stood in the way of my petitioning for Ben as my spouse.

So in September 2012, I returned to Texas, with a heavy heart and no plan to resolve our separation.  Ben and I gradually became very upset without each other. It had been a full year of spending every day with one another, going to bed and falling asleep next to each other every night, feeling inseparable. It was during the recent election that I spoke to Ben for long periods of time about our hopes of our future together. With more and more media coverage and political debate focusing on same-sex marriage, DOMA, and the future of thousands of gay and lesbian Americans like me in binational relationships, we felt a renewed hope. After Barack Obama was re-elected, the focus on equal rights for LGBT citizens and their families only continued to sharpen.  We watched as more and more couples spoke out and shared their stories, and gay and lesbian families mobilized and made the general public aware of the harm we suffered because we were denied equal rights. More and more States were weighing in on the debate with legislation moving to legalize marriage or civil unions for same-sex couples.   For me and Ben, it was clearly the right time to join this fight.

Knowing that the Supreme Court had agreed to hear cases debating the constitutionality of DOMA and California’s anti-gay marriage ban, known as Proposition 8, we made plans for Ben to come back for another visit to the United States. Ben flew from Britain at the end of November and both of us eagerly awaited the moment when we could hold each other at the airport and know that for at least some time, we were together once more. From the moment that the love of my life landed at his first layover in America, I eagerly awaited a phone call letting me know he was here and fine. I received a phone call, except it wasn’t Ben’s voice I heard through the phone. It was an U.S. Immigration and Customs officer informing me that my partner was being questioned and held until they knew the full story of who he was here to visit, how long he would be staying, and in what capacity he was related to me and my family. I came very close to falling apart in the next three hours, not knowing what was happening or whether Ben would even be allowed into the country. I finally got a call from Ben, distraught and sobbing on a public payphone in the middle of the airport where he had, after three hours, finally been allowed through customs and into the U.S. I comforted him and assured him that he would soon be home with me, and after another transfer flight, we were re-united.

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On Valentine’s Day, February 14 this year, my husband and I were legally wed in the State of Washington under its newly passed marriage equality law.  It was a day that we both had discussed and debated so much, never truly knowing if we would have that chance. The day was beautiful and we had an intimate ceremony with a few close friends and witnesses. After such a formal civil ceremony, we dressed casually and exchanged our vows and our rings above a waterfall before enjoying a quiet walk through the woods. The rest of our day was spent talking of our plans for our lives together, celebrating with our friends and dreaming of what could be. We spoke of our sacrifices and gains, our failures and triumphs. Our plans to apply for Ben’s green card, to stand proudly in front of an immigration officer and declare our commitment and love to one another. We want for nothing more than to be recognized and respected for what we are:  a committed, loving, married couple, a family. We have spent so much time reading the many other stories written by couples in the same situation as ours, and we take great comfort in the feeling that we are not in this alone. We want the same treatment and the same rights as any heterosexual couple, or any other committed couple, for that matter.

We are prepared to be a part of this grass roots effort, to keep building this community of binational couples who take affirmative steps to realize their own equality. We are not willing to wait for a court or government to tell us what we already know: our love is equal, our commitment is equal, and we deserve to be treated equally under the law. As Ben is on a tourist visa, which will eventually expire; we now have no other option than to stand up and demand equal treatment, equal rights, and the right to a future together. We want to file a green card petition that won’t be denied purely because of DOMA, though denials continue because the Obama administration insists on enforcing the law even though the Attorney General determined the law to be unconstitutional two years ago. I love my husband and do not wish to see him walk away again, not knowing when our next meeting will be. As an American citizen, I want my president to stand up, and take immediate action to defend my rights and the rights of every other gay or lesbian citizen in the same situation.  President Obama can do this by directing the Secretary of Homeland Security to issue policy that our green card case should be accepted and put on hold until the Supreme Court rules on DOMA.  We want President Obama to use the prerogatives of his office to allow us to pursue the American Dream.

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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.