Same-sex bi-national couples’ marriage and family ties will be included as part of the new criteria that will halt deportation proceedings on a case-by-case basis for undocumented immigrants.
In a letter sent today to Senate Majority Leader Harry Reid on behalf of President Obama, Department of Homeland Security secretary Janet Napolitano detailed the department’s new process of case-by-case examination that differentiates “high-priority” deportation cases involving crime and national safety concerns and “low-priority” cases which include Dream Act eligible individuals, military veterans, the elderly and undocumented immigrants with family members in the United States.
As part of the prosecutorial discretion used when examining the deportation cases, immigration officers will take into consideration the family ties and relationships of undocumented immigrants, including gay and lesbian relationships.
“It’s not a solution to the discrimination [that] the Defense of Marriage Act (DOMA) has caused, but hopefully it will provide some relief,” explained Mary Kenney, senior staff attorney at Legal Action Center, during a teleconference call.
The Department of Homeland Security will halt the deportation of those who fit this low-priority group and may even issue work permits on a case-by-case basis.
This is being viewed as a first step for some LGBT immigration advocates.
“This is further indication that [the Obama administration] is seriously considering trying to find a way to prevent breaking up our families,” said Amos Lim, a founding board member of Out4Immigration, a volunteer organization that tracks the discriminatory impact of U.S. immigration policy on the LGBT community. “This is actually not the end. Even though they might stop the deportation, there is still no way of sponsoring your partner (for citizenship).”
Those whose deportation cases are set aside will be eligible to apply for work permits, but the decision about whether to grant them will be made on a case-by-case basis and has sparked some confusion among advocates.
“I think it’s important that the administration has recognized that just closing deportation proceedings without giving them work permits puts [undocumented immigrants] in a bind, but on the other hand if the goal is to keep people out of proceedings, it sends a mixed message,” commented Victoria Neilson, legal director for Immigration Equality.
Although the Obama administration will no longer defend Section 3 of DOMA and has declared it unconstitutional, there is still no path for legal adjustment for same-sex bi-national couples.
Activists have often pointed out the inequality between heterosexual couples and homosexual couples, citing one can legally sponsor their partner for citizenship while the latter cannot.
“If it weren’t for DOMA then our marriage would’ve been recognized and I wouldn’t be on this call,” explained Erwin de Leon, a Philippine native living in the U.S. on a student visa who is married to a U.S. same-sex partner. “I definitely see it as a case of inequality; of this country having a second class citizen.”