When it was announced the DOJ would drop their defense of the Defense of Marriage Act, many recognized the repercussions may extend well beyond just 1 U.S.C. § 7 and 28 U.S.C. § 1738C. And we are already seeing them. Metro Weekly is reporting:
Christopher Bentley, the spokesman for the U.S. Citizenship and Immigration Services, [says] that cases of foreign partners who are married to a same-sex partner and would otherwise be eligible for a green card are on hold in light of questions about the continued validity of the Defense of Marriage Act.
Bentley writes, "USCIS has issued guidance to the field asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues."
He notes, however, "USCIS has not implemented any change in policy and intends to follow the President's directive to continue enforcing the law."
The implications for the immigration equality fight were apparent immediately. But the news is coming in faster than expected. And it's good. It's very good.
The facts are bi-national same-sex couples have always been—because of DOMA—blocked from applying for residency status for their spouses. And since 2006, they might even include spouses lawfully wedded here in the United States.
The legal theory appears to be, since DOMA has been found to be unconstitutional, and the Department of Justice agrees, there is nothing barring the USCIS from accepting green card applications from bi-national same-sex couples, presuming these findings hold up.
Calling these developments a "game changer" Lavi Soloway explains on his blog:
The significance of the "abeyance" policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in "pending" status, and second, this status will give protection and benefits to the applicant for an indefinite period. The "abeyance" policy, it is presumed, will put these cases on hold while the ultimate fate of DOMA is determined by a decision of the Supreme Court or through repeal by Congress.
There are of course reasons to be cautious on both sides of the argument. This move by USCIS appears to only allow the applications to be accepted, and be held in abeyance pending final outcome of the case before an appellate or ultimately the Supreme Court, should they choose to take the case. The ultimate resolution could easily be five years away. And that's a very long time for these couples.
Time is what so many of these couples just don't have. But absent a clear route for actual, permanent citizenship, the legal strategy has frequently focused on just buying time, hoping the landscape would change and legal options would open up in the meantime.
And fortunately, the DOJ and USCIS just delivered the motherlode of bought time. The fact also remains that persons subjected to a deportation order are frequently barred from re-entering the country for 10 years. Had CIS respected the status quo and continued with deportation proceedings, these families would have ultimately paid a very high penalty for Congress' folly of passing an unconstitutional law. An ex-post apology from the Government of "Sorry we tore your family apart for 10 years," can ring a little hollow in the year 2021.
This is an enormously helpful turn of events for such couples, couples like Josh Vandiver Henry Velandia highlighted in the Daily Beast.
Josh Vandiver, a graduate student at Princeton, and Henry Velandia, a dance instructor who emigrated from Venezuela in 2002, had been dating for three years when, in late 2009, Velandia got word that he was going to be deported. His request for an employer-sponsored visa had been denied, and he’d been entered into deportation proceedings.
Vandiver and Velandia are being represented by Lavi Soloway, a leading attorney on GLBT immigration issues. If this is indeed a national development, he says, it will change his strategy in the case—and likely do the same for scores of couples. Most gay and lesbian couples, Soloway says, have been unlikely even to file a green-card petition. If it alerted authorities to an illegal alien, it could actually spark a deportation proceeding on its own. But now, Soloway says, “it may be possible for some married, gay and lesbian couples to have their [green-card] cases held. And to have their [deportation hearings] deferred to a later date—maybe after DOMA is struck down in the courts. That would afford them protection in the meantime.”
Before the DOJ/DOMA decision the best hope for couples like this was the Uniting American Families Act, a bill to extend the right to petition for residency to LGBT citizens on behalf of their same-sex non-citizen partners. Though there was a House and Senate version in the last Congress, considering it combines the two-fer hot potato of "gays" and "immigrants," well, you handicap its chances for 60 Senate votes anytime soon.
This decision by the DOJ is a real game-changer for the estimated 30,000 couples that find themselves in this situation. As Chris Geidner says in Metro Weekly:
The legal distinction means that although DOMA is still being enforced, the USCIS is using its discretion to hold off on denying green card applications where applicable.
That the USCIS is exercising discretionary power to proceed cautiously on deportation orders can only be described as gracious, merciful and just and it's a decision for which they should be applauded.
For more information check out:
Update:UGH! Now, is it just me, or does shoe #1 barely meet the ground on good news for the gays than shoe #2 hits? Seem Chris Geidner is now reporting that the abeyance might only be a week long:
Despite statements from leading organizations – most prominently, Immigration Equality – suggesting that the cases would be held in abeyance until DOMA's constitutionality is settled, a DHS official told Metro Weekly on Monday night that the abeyance could last for as little as a week.
Cut to complicated legal-mumbo jumbo, which Geidner tries to help you sort out, and hopeful statements from Soloway and Rachel Tiven of Immigration Equality that the door may not close in a week. We'll see.