Leahy Proposes Two Amendments to Give Green Cards to Gay and Lesbian Couples
On Tuesday, U.S. Senator Patrick Leahy (D-Vermont), Chair of the Senate Judiciary Committee, introduced an amendment to the pending Comprehensive Immigration Reform (CIR) Bill that recognizes marriages of lesbian and gay couples for immigration purposes. The amendment carves out the first-ever exception from the Defense of Marriage Act (DOMA), which currently denies recognition of same-sex marriages under all federal laws.
DOMA Project co-founder, immigration and LGBT rights attorney Lavi Soloway reacted to the announcement of the marriage recognition amendment, calling it a “strategic masterstroke”:
“With Senator Leahy’s ingenious move, DOMA is once again front and center as the villain that has prevented gay Americans from sponsoring their foreign-born partners and spouses for green cards, and has torn apart so many LGBT families. Comprehensive immigration reform must include resolution of the catastrophic and, in many cases, irreparable harm caused to lesbian and gay binational couples, their children, and their extended families because of DOMA. Senator Leahy has deftly forced that issue to the surface, and in the process he has reminded all advocates that this legislative effort cannot be comprehensive as long as one group of American citizens are denied equal protection under the laws.
“Senator Leahy’s marriage amendment to the pending Comprehensive Immigration Reform bill is nothing short of a strategic master stroke. With this amendment, lesbian and gay binational couples would have immediate access to green cards and fiancé(e) visas even if DOMA remains the law of the land. Uniting American Families Act (UAFA), the other amendment introduced today to recognize same-sex partners of American citizens for immigration purposes, would be immediately inoperative if the marriage amendment were passed into law, because the key component of UAFA is the creation of the ‘permanent partner’ category, which only exists as long as same-sex marriages are not recognized under the Immigration and Nationality Act. Senator Leahy has demonstrated today that he is a fierce advocate for LGBT equality.”
If passed, the amendment would provide gay and lesbian Americans with foreign born partners access to all marriage-related provisions of our immigration law including green cards for their spouses and fiancé(e) visas. Leahy’s amendment would ensure that the marriages of same-sex binational couples would be recognized for every aspect of U.S. immigration law exactly as the marriages of opposite-sex couples are recognized today.
Over the past three years The DOMA Project has filed over 70 green card petitions on behalf of gay and lesbian couples, and appealed 45 of those cases to the Board of Immigration Appeals. The petitions that were denied by U.S. Citizenship and Immigration Services all contained the following dispassionate and offensive language: “Your spouse is not a person of the opposite sex. Therefore, under the DOMA, your petition must be denied.” Leahy’s amendment would relegate these denials to history.
The amendment offered by Leahy would correct this injustice by amending the Immigration and Naturalization Act with the following language:
“Notwithstanding [DOMA], an individual shall be considered a ‘spouse’ and a marriage shall be considered a ‘marriage’ for the purposes of this Act if the marriage of the individual is valid in the State in which the marriage was entered into, etc.”
Immediately upon enactment, married gay and lesbian couples would be able to petition for family based green cards for their spouses. Unmarried gay and lesbian couples would have access to fiancé(e) visas just as opposite sex couples do today.
In March, the Supreme Court heard oral arguments in Windsor vs. United States, a case challenging DOMA Section 3, in March. The Court’s ruling is expected in June.
The Leahy amendment is a critically important measure that give lesbian and gay binational couples equal access to family based immigration provisions in the event that the Supreme Court does not strike down DOMA Section 3 next month.
For more information about today’s announcement, or to schedule an interview, please contact Project Associate Derek Tripp or Lavi Soloway, attorney and co-founder of The DOMA Project.
Lavi Soloway, Attorney and Co-Founder
Derek Tripp, Project Associate
VIDEO: 17 Years After DOMA’s Introduction, Binational Couples Continue the Fight to Save their Families
17 YEARS AFTER THE DEFENSE OF MARRIAGE ACT WAS INTRODUCED, GAY AND LESBIAN BINATIONAL COUPLES ENGAGE PUBLIC IN THE FIGHT TO KEEP THEIR FAMILIES TOGETHER
MARRIED GAY AND LESBIAN COUPLES CONTINUE TO BE DENIED ACCESS TO GREEN CARDS AND FIANCÉ(E) VISAS BECAUSE OF FEDERAL LAW
Seventeen years ago, on May 7, 1996, the Defense of Marriage Act (DOMA) was introduced in the U.S. House of Representatives and the Senate. At the time, legislators’ primary objective was to express moral disapproval of gays and lesbians. DOMA Section 3, which defines marriage for all federal purposes as between one man and one woman, has caused catastrophic and irreparable harm to American families. Same-sex married couples are barred from 1,138 provisions of federal law that are designed to strengthen families. By contrast, no marriages were actually defended.
For 17 years, DOMA has caused immeasurable financial and emotional hardship for gay and lesbian Americans, particularly those in long-term committed relationships with a foreign national. In Boulder, Colorado, Catriona lives with her spouse, Cathy, a citizen of Ireland. Together they are raising three children. This family lives under constant threat of separation ever since Cathy’s work visa ran out last year.
Other couples, like American, Jesse Goodman and Argentinean, Max Oliva, have been forced to live in exile in London, unable to return home. Others have no alternative but to struggle in long distance relationships indefinitely, traveling across the globe for short visits, sustaining their commitment to one another by Skype and telephone.
The years lost to DOMA will never be regained for these families. Even DOMA’s original sponsor, former Republican Congressman Bob Barr repudiated the discriminatory law in 2009 as an unacceptable infringement on individual liberty. President Clinton, who signed DOMA into law, finally denounced it this past March. With 12 federal court rulings against DOMA in less than three years, and the Obama Administration’s unprecedented commitment to fight DOMA alongside lesbian and gay plaintiffs, many commentators see a Supreme Court ruling striking down DOMA as imminent.
This week the Senate Judiciary Committee will begin work on the markup of a comprehensive immigration reform bill that excludes gay and lesbian couples. Senate Republicans have threatened that inclusion of an amendment to add gay families to the bill will ensure that comprehensive immigration reform goes down to defeat. Republicans are once again scapegoating gay Americans, rather than fixing a broken immigration system so that it protects all our families. Because gay and lesbian couples have been left out of immigration reform, everything now rides on a Supreme Court decision on DOMA due in a few weeks.
Despite some optimism, the Court’s final ruling on DOMA won’t be known until the day of the ruling. If the Court upholds DOMA, gay and lesbian Americans with foreign-born partners would have no recourse; couples and families would continue to be torn apart, parents separated from children, and American citizens driven into exile.
During this crucial time, DOMA Project participants are actively engaging with media, elected officials, and their broader communities with the message that their families’ futures hang in the balance. The DOMA Project has arranged for numerous gay and lesbian binational couples across the country to be available for interviews and for telephone and video conference interviews.
For more information about today’s announcement, or to schedule an interview, please contact Project Associate Derek Tripp or Lavi Soloway, attorney and co-founder of The DOMA Project.
Lavi Soloway, Attorney and Co-Founder
Derek Tripp, Project Associate
MARRIED GAY AND LESBIAN COUPLES CONTINUE TO BE DENIED ACCESS TO GREEN CARDS BECAUSE OF FEDERAL LAW
Binational Couples & The DOMA Project Co-Founder Lavi Soloway Rally Outside the Supreme Court for an End to Law Which Keeps Families Apart or Exiled Overseas
On March 27th, the Supreme Court of the United States will hear oral arguments in the case of Windsor v. United States, a challenge to Section 3 of the Defense of Marriage Act (DOMA). Section 3 prohibits the Federal Government from recognizing same-sex marriages, including for the purposes of immigration. Because of DOMA, tens of thousands of legally married gay and lesbian Americans are not able to petition their spouse for a green card or apply for a fiancé(e) visa to bring their partner abroad to the United States. The result for many couples is that they are forced to live thousands of miles apart and only able to spend time with their husband or wife for weeks at a time. Other couples are exiled from the United States all together, and must relocate to another country in order to live with their spouse.
At issue in Windsor v. United States is whether the Federal Government was permitted to tax the estate that Thea Spyer left to her wife Edith Windsor as if the two were legal strangers. While estates left from one spouse to another are not typically taxed, Edith Windsor was given an over $360,000 tax bill. The Supreme Court will hear arguments as to whether DOMA violates the Equal Protection clause of the United States Constitution and whether the Bipartisan Legal Advisory Group has standing to defend the challenge to DOMA. In 8 lower Federal Court decisions, each reviewing court has found that DOMA violates the constitution because it discriminates against lesbian and gay Americans.
“The DOMA applies as a matter of federal law whether or not your marriage is recognized under state law. Your spouse is not a person of the opposite sex. Therefore, under the DOMA your petition must be denied.”
The DOMA Project has filed over 40 green card and fiancé(e) visas for same-sex couples since the campaign began in 2010. While U.S. Citizenship and Immigration Services (USCIS) has continued to deny these applications based solely on Section 3 of DOMA, the Board of Immigration Appeals (BIA) has, in every case it has reviewed, told USCIS that is must determine the validity of these marriages on their face, and cannot deny these applications out of hand. The Obama Administration and the Department of Homeland Security have the prerogative to hold these applications in abeyance; neither approving nor denying these applications until the Supreme Court issues a final decision in June. An abeyance policy would respect the marriages of American citizens and allow gay and lesbian foreign-born partners to be reunited with their US citizen spouses in the United States.
For more information about today’s announcement, or to schedule an interview, please contact Derek Tripp or Lavi Soloway. Lavi Soloway is an attorney for couples participating in The DOMA Project and co-founder of The DOMA Project.
Lavi Soloway, Attorney and Co-Founder – Phone: 323-599-6915 – [email protected]
Derek Tripp, Project Associate – Phone: 646-535-3788 – [email protected]
DOMA Ruled Unconstitutional By Second Circuit Court of Appeals, Setting Up Final Showdown at the Supreme Court
“Last week, in a 2-1 decision in the case of Windsor v. United States, the Second Circuit Court of Appeals ruled that the Defense of Marriage Act (DOMA) is unconstitutional because it violates the equal protection guarantee of the Fifth Amendment. The Court’s decision was written by Dennis Jacobs, Chief Judge of the Second Circuit, a conservative jurist appointed to the bench by President George H. W. Bush in 1992. The Second Circuit ruling is the 8th consecutive ruling striking down DOMA since July 2010, and it is the second such ruling from a federal court of appeals. (The First Circuit Court of Appeals ruled on May 31, 2012 that DOMA is unconstitutional.)
The ruling in Windsor is likely to be the last appeals court decision on DOMA before the U.S. Supreme Court announces later this year that it will formally agree to review the constitutionality of this law by accepting one or more challenges to DOMA now pending before the high court.
Importantly, the Second Circuit Court of Appeals not only found that DOMA was unconstitutional, it also determined that a heightened level of scrutiny must be applied to any law that discriminates against LGBT persons. That means, that in the Second Circuit, any provision of law that treats LGBT people unequally must be presumed to be unconstitutional. The Supreme Court may adopt the same standard when it takes up one or more of the pending challenges to DOMA next year (including Windsor) and decides the issue once and for all.
Last week’s victory over DOMA in the Second Circuit is historic, unprecedented and of such critical, far-reaching, potential legal significance that its full impact is hard to measure. But it is first and foremost a victory for an inspring, courageous, and determined DOMA Warrior, 83-year-old Edith (Edie) Windsor.
Edie and her wife, Thea Spyer, were married in Canada in 2007 after lmore than forty years together as a couple in New York. In 2009, when Thea passed away, the Internal Revenue Service, citing DOMA, denied recognition of their marriage and refused apply the marital deduction that protects surviving spouses from estate tax. Instead the IRS forced Edie to pay a $363,000 tax bill on Thea’s estate. Not only was she contending with the loss of her life-partner, but she was, in fact, being told that the life they had built together meant nothing to the government; to the IRS, it was as though it never happened. It is often so difficult for couples to quantify the heartache, the pain, and the hurt that a law like DOMA causes. Windsor v. United States leaves no question as to a very specific harm DOMA caused to Edie. Edie Windsor is not only a litigant, however; for years, she has demonstrated through her advocacy that our most powerful tools are the stories of our own lives. Edie’s belief that we must all be treated with dignity and respect was the reason for her lawsuit, and it is the reason that we, as binational couples, continue to fight DOMA by demanding nothing less, every day. What she accomplished in court last week is valuable to the LGBT movement in a way that defies any measure in dollars and cents.
As a grassroots campaign, The DOMA Project focuses on DOMA’s devastating impact on binational gay and lesbian couples who are denied access to green cards and all other vital family unification provisions of our immigration law, e.g. fiancé(e) visas, waivers for unlawful presence bars, stepchildren petitions, derivative non-immigrant status, status as spouses of refugees, spouses of green card lottery winners, etc. solely because of DOMA. Each day that DOMA remains the law of the land, it forces gay couples couples into exile, separates couples from each other and from their children, and forces spouses and partners of U.S. citizens to remain in the United States without lawful immigration status, all with devastating effects not only on LGBT families and on our marriages, but also on our extended American families, our communities, our businesses, our friends and our own dreams for the future.
DOMA is tearing apart our families, and while every court ruling helps us build the foundation for its demise, we should not lose sight of the fact that federal courts are not the only, or even the primary forum, for our fight. We must keep up the momentum by continuing to focus our advocacy of the harmful consequences of DOMA, and on the policies that must be implemented now to counter those consequences. We cannot become complacent and simply trust that DOMA will ultimately be struck down by the U.S. Supreme Court. If we adopt such a passive approach, we are gambling, in a sense, with our marriages, our families and our futures. Instead, we must continue to help build a receptive climate for the powerful cases against DOMA by exposing the truth of what it is doing every day to our families. All of us can play a part if we choose to be a part of this fight to the finish line. We all have too much at stake to simply sit back and watch events unfold.
The DOMA Project continues to work to empower binational couples and fight for immediate remedial policies to prevent the catastrophic, destructive impact DOMA is having on our families.
Like Edie Windsor, we will continue to fight for a federal government that no longer disrespects the love and commitment that same-sex couples have made to one another, where couples are no longer forced to choose between their love and their country, where LGBT families are not torn apart or forced into exile.
In his decision, Chief Judge Jacobs notes that the final decision on the constitutionality of DOMA, which discriminates against all same-sex couples by prohibiting the federal government from recognizing our marriages, “will have a considerable impact on many operations of the United States.” Indeed, DOMA is not an abstraction; as the Windsor case reminds all, its consequences are devastating: our families are harmed every day by this law, often irreparably. As such, while we celebrate every ruling as another nail in the coffin, we continue to fight to end the consequences of DOMA today. There can be no waiting in the fight for full equality. The slow and complex litigation will continue with a constant drumbeat of speculation as we near a final judicial resolution of DOMA, while tens of thousands of binational couples will struggle to make it through another day, trying to hold their marriages and their families together. As we celebrate last week’s tremendous victory, we cannot forget that there are remedies available to the government to protect and reunite all lesbian and gay binational couples and their families today. We will continue to fight to stop every deportation, separation and exile of binational couples.
To achieve immediate policy solutions it is important not to find oneself passively waiting for another court ruling, but rather to join other binational couples in active engagement and participation in our campaign. Over the the next eight months, our country will focus increasingly on this issue, and its expected resolution by the Supreme Court by June 2013. But that should not become a distraction for binational couples eager to fight for immediate executive branch policies that will keep our families together now.
There is one court in which all of us dwell and that is the court of public opinion. We must continue to score victories in the court of public opinion in order to reach our goal of full equality. Edie has shown us how our own lived experiences, shared with a wide audience in compelling and personal terms, served to persuade of even the most conservative jurist. For her, and all the courageous men and women who have come before us and who have made our fight possible, let us never waver in our determination to achieve full equality.”
VICTORY! DHS Issues Written Guidance to Stop Deportations of the Spouses and Partners of Gay and Lesbian Americans
We learned today that on October 5, the Principal Legal Advisor to the United States Immigration and Customs Enforcement agency issued long-awaited written guidelines (attached below) clarifying that prosecutorial discretion guidelines issued by the agency in June 2011 to protect families from being separated by deportations in low-priority cases, would, in fact, include same-sex couples. The written guidance began to circulate today and was first reported on by the media this evening.
“For the first time ever, the federal government has put in writing a policy to protect gay and lesbian couples who are threatened with deportation by explicitly including same-sex couples in the definition of “family relationships,” putting it beyond doubt that gay and lesbian couples are eligible for favorable acts of discretion when subject to removal.
Since the summer of 2010, a group of determined gay and lesbian binational couples have organized and fought for this policy as a central part of our “Stop the Deportations, Separations and Exile” campaign. This is a tremendous moment for our community, and an especially important illustration of how those affected by our nation’s discriminatory immigration laws have, through their own acts of courage, made a change possible. This is trickle-up, grass roots activism at its best.
This guidance is a big win for all lesbian and gay couples seeking to end the catastrophic consequences of the Defense of Marriage Act.
We are grateful that the Obama administration has finally issued written guidelines that bi-national same-sex couples can invoke when fighting deportations in court. Our law firm, Masliah & Soloway, as part of this pro bono campaign, continues to represent numerous same-sex couples in immigration courts around the country who are facing imminent deportation, and, thanks to this document, we can help many more couples from being torn apart.
Specifically, this guidance helps clarify that foreign-national spouses and partners of gay and lesbian Americans are now protected from deportation. This new guidance will help bring an end to the confusion caused by the contradictory signals the administration had been sending: that DOMA precluded the recognition or even the acknowledgement of married lesbian and gay bi-national couples who were facing deportation, and the fact that these couples are same-sex partners who constitute families that should not be broken apart.
The foundation of this policy is an inclusive definition of family and a statement of principle that LGBT families deserve protection. It is evidence that the Obama administration is able to develop innovative, interim remedies to protect gay and lesbian Americans who fear being torn apart from the person that they love. This policy is a great start. We now must continue to work with the Department of Homeland Security to open up “humanitarian parole” to bring all the gay and lesbian Americans and their partners back from exile and reunite all same-sex binational couples. The administration should also provide immediate relief and protection for those gay and lesbian binational couples in the United States, by accepting the green card petitions and putting their adjudication on hold until the Supreme Court has ruled on the constitutionality of DOMA.
Twenty-seven months ago, in July 2010, we launched The DOMA Project to refocus the fight for binational couples around DOMA. By 2010, we had worked for more than seventeen years on this issue, and we believed that the timing was right to embark on a strategic reframing of these issues around DOMA. Our goals were: first, defeating DOMA in the court of public opinion (and thus contribute to its demise whether legislatively or by courts) and secondly, most importantly, to develop, advocate, and see the implementation of interim remedial policies that would to end the deportations, separations and exile of binational couples.
The DOMA Project campaign was launched by our boutique immigration law firm (founded by two gay immigrants) that has long been prominently involved the leadership of the fight for binational couples, and has committed significant resources to fighting for Marriage Equality. Almost twenty years ago we founded Immigration Equality and in the late 1990s we helped write the legislation now known as the Uniting American Families Act (UAFA) that is currently pending in Congress. Since launching The DOMA Project two years ago we have dedicated our personal and professional time and energy and donated thousands of hours of pro bono legal services. We have also built a team of volunteers and engaged hundreds of binational couples on the front-lines of this grass roots campaign.
The courageous founding couples that joined this campaign in 2010 led an unprecedented national advocacy campaign that finally resulted in the tremendous victory: written policy to stop the DOMA deportations just a week ago. Before we launched The DOMA Project, binational couples did not have the support and resources to organize a fight against “DOMA Deportations.”
We have filed and continue to fight for fiancée visa petitions, humanitarian parole, and every policy initiative that will return our gay and lesbian brothers and sisters from exile to their American families.
None of our campaign’s work is severable; our mission is about telling our stories, and winning policy changes that end the catastrophic impact DOMA has on our marriages, our families and our communities. Our campaign staff’s and volunteers’ personal experiences as lesbian and gay immigration attorneys, lesbian and gay immigrants, and as binational couples ourselves, inform every aspect of our work. None of this work is independent of any other aspect of this work. Every success is equally important, inextricably linked and mutually supportive of all three primary areas of focus (deportation, separation and exile).
Since July 2010, we have teamed with numerous organizations such as the Gay & Lesbian Alliance Against Defamation, Lambda Legal, Freedom to Marry, GetEqual, Gay & Lesbian Advocates & Defenders, Out4Immigration, and many others to fight for policies that protect our families and keep us together until DOMA is relegated to the dustbin of history. We have developed a tremendously successful partnership with the DeVote Campaign to tell the stories of binational couples through video vignettes which are being produced as we speak and wil be rolled out in the coming weeks. We are engaged in an exhaustive, multi-prong effort to empower binational couples and give us a platform to tell our stories as part of making change happen: for those in the U.S., those abroad, and those separated.
We do not believe in sitting on the sidelines or resting on one victory, though each hard fought win to save a couple from being torn apart should be honored and celebrated. We do not believe the fight for social justice and civil rights can be a spectator sport. We work hard to ensure that we maintain a relentlessly positive and respectful campaign for change, in which we assume our own equality, and fight laws and policies. It is not our goal to build another organization with lasting infrastructure. We are collaborators who eagerly generate innovative policy solutions and creative legal strategies. We are careful about the terminology we use in this endeavor, because we cannot be empowered if we are unable to articulate a clear message. We respect and honor every couple’s different experience when impacted by DOMA in this context. With our extremely limited resources, we have built a platform that has brought these stories to a worldwide audience and to the highest levels of our government. And change is happening.
But our work depends on individuals stepping forward to make change happen. This campaign is a campaign of stories of empowerment, of lived experiences, and of our voices. It is not a campaign built on criticism of one tactic over another and it is not a campaign that has any hierarchy of suffering. We are all in this together to achieve change for all our families.
We urge anyone who wants to support our work or get involved to contact us at [email protected]. We cannot achieve our goals without your financial support. The volunteers, including the attorneys, have donated the most, but we need everyone who can contribute to give what they can. Donations are tax deductible and go to our fiscal sponsor 501c3 organization the Love Honor Cherish Foundation which in turn dispenses the funds raised, dollar for dollar, to The DOMA Project. We have logged thousands of volunteer hours this year. Many couples participating in The DOMA Project contribute financially to help fund to their own legal challenges and all get directly involved in our advocacy, but the value of this legal work cannot be fully realized unless we are also able to cover the our of pocket costs involved in our cases and our advocacy, and have sufficient resources to involve as many couples as possible. Please help us making a donation today.
VICTORY! Obama Administration Recognizes Marriages of Gay and Lesbian Binational Couples, Expanding Deportation Policy to LGBT Families
After a two-year campaign urging the Obama administration to stop the deportations of spouses of gay and lesbian Americans, we welcome the announcement by the Department of Homeland Security (DHS) that it will formally recognize same-sex marriages as part of its year-old ‘prosecutorial discretion’ deportation policy and other related enforcement matters.
Yesterday, in a statement to BuzzFeed, Deputy Press Secretary for the Department of Homeland Security announced a surprising shift in the policy of the Obama administration with respect to married same-sex couples facing deportation: “[W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen.” August 1, 2012
August 2, 2012 statement by Attorney Lavi Soloway, founder Stop The Deportations – The DOMA Project:
“After a two-year campaign urging the Obama administration to stop the deportations of spouses of gay and lesbian Americans, we welcome the announcement by the Department of Homeland Security (DHS) that it will formally recognize same-sex marriages as part of its year-old ‘prosecutorial discretion’ deportation policy and other related enforcement matters.
“By articulating the first federal policy to specifically recognize marriages of gay and lesbian couples as a basis for agency action, the Obama administration has indicated to deportations officers, Immigration Judges, and Immigration & Customs Enforcement prosecutors, and Citizenship and Immigration Services adjudicators that our marriages must be considered when determining whether a case is deemed low priority for deportation. The Administration should issue clear guidance memorializing this announcement without delay so that all families can be protected under a clear, consistently applied prosecutorial discretion policy.
“This move is significant beyond the immigration context, as it constitutes the first time any agency of the federal government has created a policy explicitly recognizing same-sex marriages.
“By giving legal effect to the lawful marriages of gay and lesbian couples, the Obama administration has demonstrated what we have argued all along to be true: that executive branch agencies can create policies to mitigate the discriminatory impact of DOMA on gay and lesbian binational couples, even while DOMA continues to prevent approval of those couples’ green card petitions.
“Last summer a senior administration official promised, in a background briefing to the media, to take into account ‘LGBT families’ in its deportation policy. DHS backtracked from that language in October 2011, when it issued a letter to members of Congress stating only the ‘community ties’ of LGBT individuals facing deportation would be considered, which unambiguously abandoned the previous, more inclusive reference to ‘LGBT families.’
“Yesterday’s announcement acknowledging the marriages of gay and lesbian couples is a giant step forward honoring the struggle of thousands of loving couples who are subject to DOMA’s most punishing consequences. Hundreds of determined and brave binational couples who demanded an end to ‘DOMA deportations’ deserve tremendous credit for moving elected officials and the administration forward on this issue.
“Still, gay and lesbian Americans are not able to sponsor their spouses for green cards because of DOMA, depriving married couples of the right to build a future together, tearing apart families by separating spouses from each other and, in many cases, from their children.
“To address this immediate, irreparable harm, the administration should stop denying green card petitions filed by gay and lesbian binational couples and instead put those cases on hold pending a ruling by the Supreme Court on the constitutionality of DOMA expected next year. We are hopeful that the White House will follow today’s announcement with additional measures that will bring all lesbian and gay binational couples one step closer to full equality.”
Supreme Court Ruling on Arizona Law: A Win For Immigration Advocates, Decisive Blow to Anti-Immigrant Forces
Statement by Lavi Soloway, Stop The Deportations – The DOMA Project:
“Today’s 5-3 Supreme Court ruling struck down most of the notorious Arizona immigration enforcement law SB 1070 as an unconstitutional infringement on federal authority. This was a clear win for the Obama administration and for immigration advocates, and a decisive blow to anti-immigrant activists and politicians like Arizona Governor Jan Brewer who argued that states could enforce federal immigration law.
Writing for the majority, Justice Kennedy repeatedly affirmed the broad discretionary powers of the executive branch to enforce immigration law, including the broad discretion exercised by immigration officials not to pursue cases with good equities. This language supports the Obama administration’s June 15 decision to grant deferred action and halt the deportations of the children of undocumented immigrants, and provides further support for our campaign to stop all deportations of spouses and partner of lesbian and gay Americans.
As an advocate of immigration reform, I remain concerned that the Court did not strike down what is widely considered the most controversial “racial profiling” provision of the law, Section 2(B). That section requires Arizona police officers to verify immigration status when stopping, arresting, or detaining someone. All immigrant communities and activists, including LGBT advocates, are right to be concerned that this provision violates federal authority in immigration enforcement and would lead to racial profiling and targeting of vulnerable communities.
However, the Supreme Court today did not give §2(B) the proverbial “Good Housekeeping Seal of Approval.” The Supreme Court narrowly allowed that provision to stand for now, but essentially warned the State of Arizona (and other states who are seeking to mimic Arizona’s attempt to usurp federal authority in this area) that this provision could be struck down in the future depending on how it will be applied in practice or how state courts interpret its scope. In fact, Justice Kennedy all but predicted that the “papers please” provision would be revisited by the Supreme Court if this state police power is used in a way that violates federal authority. It is disappointing that §2(B) was not struck down today, but I remain optimistic that it will not survive constitutional scrutiny when it is inevitably challenged in the future given the standard set forth today by the Supreme Court.”
Read the full decision of the Supreme Court in Arizona v. United States 11-182 (2012).
Victory! Board of Immigration Appeals Refuses to Affirm Denials of Green Card Petitions Filed by Four Gay Couples, Remands for Determination on Eligibility of Marriages
The DOMA Project has won an important, unprecedented victory in the fight for green cards for married gay and lesbian binational couples. In four separate rulings, the Board of Immigration Appeals has rejected the U.S. Citizenship and Immigration Services’ “DOMA denials” of green card petitions filed by four married, gay couples residing in Florida, New York, Pennsylvania and Canada. In all cases, the BIA ordered the USCIS to complete full fact-finding to determine whether the marriages are legally valid and whether, notwithstanding DOMA Section 3, the spouse would qualify for a green card under the Immigration & Nationality Act. In one case, the ruling re-opened removal proceedings for the spouse of a gay American who had an outstanding deportation order. The Board of Immigration Appeals has never before re-opened removal proceedings or remanded green card petitions back to USCIS after denials based solely on DOMA Section 3.
“We are elated that the Department of Justice has ordered USCIS to treat the marriages of each gay binational couple with respect by requiring that a complete record of eligibility be created,” said attorney Lavi Soloway in reaction to the rulings.
We will follow up with a complete report next week on this site.
The BIA rulings were reported today by Chris Geidner at MetroWeekly here.
Read more about two of the couples involved: Mark Himes and Frederic Deloizy of Harrisburg, Pennsylvania and Tom Smeraldo and Emilio Ojeda, formerly of New Jersey now living in exile in Toronto, Canada.
The DOMA Project Reacts to Policy Granting Deferred Action and Employment Authorization to Dream Act Immigrants
Department of Homeland Security Secretary Janet Napolitano released a three-page memorandum directing U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to offer “deferred action” to certain young persons who were brought to the United States as children. The President followed the release of the DHS memo with a speech in the Rose Garden announcing the long-awaited policy which, in some respects, closely tracks the legislation known as the DREAM Act and responds directly to years of protests and a massive grass roots organizing efforts by student activists known as “Dreamers.” Perhaps most importantly, today’s events demonstrated that the President will use his broad authority to solve problems that Congress is unwilling to address, especially when communities organize and advocate effectively for executive branch action. Today’s move falls squarely within the framework of President Obama’s mantra, We Can’t Wait, but it also confirms the President’s repeated promise to take action when his feet are held to the fire. At today’s White House Pride Reception, the President repeated that theme: “Now, I’ve said before that I would never counsel patience; that it wasn’t right to tell you to be patient any more than it was right for others to tell women to be patient a century ago, or African Americans to be patient a half century ago. After decades of inaction and indifference, you have every reason and right to push, loudly and forcefully, for equality.”
Statement by Lavi Soloway, co-founder, Stop The Deportations – The DOMA Project:
“President Obama used the discretionary power of the executive branch to achieve greater fairness in the enforcement of our immigration laws, consistent with his promise to prioritize keeping families together. This new policy provides temporary lawful status and employment authorization to hundreds of thousands of young immigrants, including many LGBT “Dream Act” students, and strengthens our communities and our country. While we celebrate this important step forward, we are reminded every day that there is much more work to be done to ensure that our immigration policy protects all American families.
We urge the administration to implement interim solutions that protect gay and lesbian binational couples who are excluded from the existing “green card” process available to all other married couples because of the Defense of Marriage Act. Every day these couples worry that they will be torn apart or forced into exile in order to stay together. This administration has said that denying green cards to the spouses of gay and lesbian Americans is a violation of the equal protection guarantee of the U.S. Constitution, but has not taken the steps necessary to mitigate the discriminatory impact of DOMA in this area. Instead, U.S. Citizenship and Immigration Services continues to deny green card petitions filed by lesbian and gay Americans for their spouses.
Given that six federal court rulings have found DOMA to be unconstitutional, the administration now should put into effect the following policy to stop the deportations, separations and exile of gay and lesbian binational couples:
(1) order an immediate moratorium on deportations of the partners and spouses of gay and lesbian Americans who, but for DOMA, would be eligible for permanent resident status;
(2) provide temporary humanitarian parole to the partners, spouses and children of gay and lesbian Americans who are stuck outside the United States, so that these families can be reunited; and
(3) put on hold all “green card” petitions filed by gay and lesbian Americans for their spouses, thereby giving those spouses lawful status and employment authorization until DOMA has been struck down by the Supreme Court or repealed by Congress;
These steps would not achieve full equality, but they would keep these LGBT families together until DOMA has been defeated.”