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Binational couples see hopes rise and fall
News update posted April 1, 2011
by Yasmin Nair, Windy City Times

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Over the course of the last week, binational couples saw a glimmer of hope from the Obama administration but then saw that vanish almost instantly. On March 25, the United States Citizenship and Immigration Services ( USCIS ) announced that it would hold in abeyance cases of same-sex married binational couples who were petitioning for green cards and where one spouse was awaiting deportation. The news came after two field offices of USCIS, in Maryland and DC, had decided to put the cases of married same- couples on hold. When asked if USCIS would institute such holds nationally, press secretary Christopher Bentley told Metro Weekly that, "We have not implemented any change in policy and intend to follow the president's directive to continue enforcing the law." Barely a day later, the USCIS announced that, having reviewed the matter, such abeyances would only last a week. The initial euphoria experienced by activists and binational couples quickly dissipated.

What happened to cause such seemingly contradictory news stories to emerge so quickly one after the other? Is this in fact a backtracking of the administration's policy, as some are claiming? As binational couples wait for a resolution, the story of this latest piece of hope turning quickly into disappointment indicates how much hinges upon the legal technicalities of an issue that leaves many binational couples feeling like they are living in limbo.

The Defense of Marriage Act ( DOMA ) is the main legal impediment to binational same-sex couples' attempts to sponsor their partners. Passed into law into 1996, the legislation defines, in its section 3, marriage as between a man and a woman. On February 23, attorney general Eric Holder sent a letter to John Boehner, speaker of the house of representatives, saying that he had determined that section 3 "as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment." But Holder also added that, "...the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality."

Gays and lesbians fighting for same sex marriage rights immediately hailed this as a positive step towards the eventual repeal of DOMA. The wording of Holder's letter, clearly stating that DOMA would still be complied with, would come to resonate sharply only a few weeks later, with different consequences for binational couples.

The March 25 news initially delighted immigration attorneys and activists working on the issue of binationals. Speaking to WCT immediately afterwards, Lavi Soloway, a New York-based attorney and co-founder of Immigration Equality, said that the holds represented "the likelihood that [ the measure ] has effectively halted all deportations, given the opportunity to halt all deportations for those couples who are married and who would otherwise be eligible for green cards if not for DOMA." Soloway filed multiple requests on behalf of married, binational couples where one spouse is facing deportation, immediately following the release of Holder's letter. Foreign nationals in binational relationships are not automatically held for deportation; they may be on the course for such if they can be shown to be here illegally or if their petition for an I-130 or spousal visa is overturned since DOMA precludes the recognition of gay marriages.

The news may have emboldened some couples to get married in states that recognize same-sex marriages between citizens/legal permanent residents and foreign nationals, but this could put them on the path to deportation if DOMA is not repealed in time. Experienced attorneys working with gay and lesbian immigrants have spoken about the complexities of such petitions. Eric Berndt is the supervising attorney for Heartland Alliance's National Immnigrant Justice Center's National Asylum Partnership on Sexual Minorities, and he had previously spoken with WCT about the effects of the DOMA decision on binational cases [ ] , cautioning that couples should consult with attorneys before taking any quick measures to speed their cases. For instance, a couple where the foreign national has entered on the premise of a vacation could jeopardise their chances of him or her getting another visa to stay or visit here if they got married and DOMA is not repealed in time.

Regardless, even the most cautious couples in binational relationships could not help but see hope for their situation. Speaking via phone from New Jersey immediately after the March 25 announcement, Kim said that she and her partner Mary, a Jamaican national, were finally feeling hopeful after six years of waiting. Their story is complicated by the fact that Mary is not out to her family, and Jamaica is not the place where gays and lesbians feel free to be openly gay, according to Kim ( their names are pseudoynyms; Kim says this is because of the fear of Mary being outed ) . Over the years, the two have travelled to see each other in Jamaica and the U.S on tourist visas ( Mary is here till June on one ) , always careful not to let authorities know of their relationship ( the US usually denies visitor's visas to those, straight or gay, who are romantically involved with Americans,in order to ensure that people do not stay on ) but also careful not to overstay their visas. The initial news from USCIS made them think they migth be able to marry, in hopes of DOMA's repeal.

Asked in a second interview what she felt about the news that the abeyances were only temporary, Kim said, "It feels like whiplash. Our heads are spinning trying to figure out the right thing to do in. In the morning, we thought we could get married, by afternoon — not." The women are represented by a Chicago lawyer, Michael Jarecki, who is also the chair of the LGBT Working Group for the American Immigration Lawyers Association ( AILA ) . Saying that they felt "extremely disappointed," Kim said they were back where they started, in a catch-22: if they marry, there is only a small chance of DOMA being overturned, which could leave Mary facing deportation.

Speaking to WCT, Christopher Bentley clarified USCIS's position and emphasized that there was no backtracking: "What had happened was that we placed a hold on the adjudication of these cases while we were waiting for some very specific guidance to some discrete technical legal questions as we were moving forward. We received that guidance [ and ] we lifted the hold and we are now adjudicating the cases as we always have, enforcing the law as directed by the President." He also clarified that there could have been no room for confusion over USCIS's approach: "Our stance is very clear. Since the beginning we have said: there is no policy change in effect here nor anticipated and we will continue to enforce the laws ad directed by the President. The only thing that happened here was that we paused, as we frequentely do when there is a legal question that's outstanding. And we don't adjudicate the cases until we have that legal question in order. And once the guidance was passed on to us, we lifted the hold and started adjudicating the cases again."

Soloway said that the news was "very disappointing" and that while USCIS had made their position clear, "I have a different position in terms of how the law is interpreted. I believe that the USCIS can and should hold green card applications filed by married gay couples in abeyance and in doing that they protect the couples but do not contradict the administration's position that it must not contradict the DOMA."

But what would this mean for the people he represented? Soloway said that he made it clear that "you cannot rely on a discretionary policy to determine whether or not to take a running leap and perhaps take the risk of your case being denied and bieng put into deportation proceedings. A discretionary policy does not give the protectiont that a formal policy would. We are focused on the same set of risks: somebody files on the basis of their marrige, the likelihood is that their case will be denied and if they are here illegally they run the risk of being put into deportation proceedigns. It's very important that gay and lesbian couples not rush headstrong into any kind of filings."

In seeking to explain why lawyers and activists were initially so happy with the first bit of news, Eric Berndt suggested that they may have read it in the most optimistic fashion: "It seems that [ USCIS ] technically were clear in that they were waiting for pending legal guidance. The advocacy community thought that they were waiting for guidance on using prosecutorial discretion on DOMA. But it turns out they were looking out for a more narrow form of guidance. The community looked at the statement optimistically, more than was prudent given the administration's aversion to looking like they were not taking the hard line [ on immigration ] ." He added that, "The Obama administration shows a lack of political courage and commitment to stated policies by backtracking, based on the fear of Republican backlash."

Both Berndt and Soloway remain optimistic that this momentary blip might in fact eventually make for a stronger case for prosecutorial discretion to be made in future, especially since it had brought the issue to the forefront.

Immigration Equality's communications director Steve Ralls emphasized that IE had encouraged prudence on the part of couples. He said, "Immigration Equality hopes for a long-term solution for those whose hopes were dashed by the USCIS announcement. They should return to holding those applications until DOMA's constitutionality is resolved. Hopefully, the administration can take another look at those." IE is also a major sponsor of the Uniting American Families Act, which Ralls said would be reintroduced in the next month.

Both Soloway and Ralls pointed to non-LGBT groups like the American Immigration Lawyers's Association having worked on the issue with them. David Leopold, an Ohio-based lawyer and president of AILA, said that the ban on same-sex couples sponsoring their sponses was "outdated, archaic, unfair." He also contextualized it within the larger framework of immigration reform, which has been slow in making its way into any legislative form: "Immigration law is broken. The policy is not working for families or businesses. This administration needs to show backbone and leadership on the issue of immigration reform and gay couples. Congress needs to change the law." He also said that despite DOMA, there are things "that the administration can do to make sure the law is not used to hurt families — use discretion in a way that is consistent with the law and ameliorate the effects of the statue on families."

While they are likely to be glad for such support, several binational couples like Kim and Mary are faced with constant worry as they try to see their way through. In some cases, as with Shirley Tan and Jay Mercado, whose case was taken up by IE, it is possible to gain enough public attention to go so far as to get a private bill ( in Tan's name ) , a highly rare occurence. However, Ralls clarified, this is not a permanent solution and requires the bill to be reintroduced every two years and the support of the key legislator, leading to great stress and emphasizing the need for more permanent solutions like the repeal of DOMA or UAFA becoming law. Said Kim, "We've always felt like we're in limbo, but now it's even worse. I really wish they could figure this out."

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