Good news on immigration: why it matters

The Obama Administration has made the sensible decision that people who are in the country without documents but aren't criminals should be lower priority for deportation.

This is particularly heartening for same-sex "transnational" couples. If they were straight, the citizen partner could sponsor the non-citizen partner for a green card. But thanks to DOMA, they aren't given that right, and there are lots of heartbreaking cases of people being ripped apart.

But with this new implementation policy, that should change. From the NY TImes:

The administration’s announcement also had an immediate impact on a case in Denver, where an immigration judge on Friday postponed the deportation of Sujey Pando, a lesbian from Mexico legally married in Iowa to an American from Colorado, Violeta Pando. Although federal law does not recognize same-sex marriages, administration officials said they would consider same-sex spouses as “family” in their review of deportation cases.

The judge, Mimi Tsankov, cited the flux in laws and policies affecting same-sex cases in delaying a decision on Sujey Pando’s deportation at least until January, said Lavi Soloway, a lawyer for the couple.

Our families are just as real, and our love just as important. It's good news that this will finally make a difference.

But what we really need is the elimination of DOMA, and as cases wend their way through the court system, I hope that will happen.

Deportation of caregiving partner: WHY IT MATTERS

From The SF CHronicle

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse. Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

I would really like Maggie Gallagher to explain how this "protects the sanctity of marriage". How this deportation is necessary to protect HER marriage. Because somehow, if these two men stay together, straight couples will stop having babies. Or something. Can she defend the indefensible? I'm sure she will. This is heartbreaking.

WHy it matters: immigration (video Sunday)

Talking about DOMA (updated)

There's a lot of discussion of DOMA going on.

First, over at Metroweekly/Poliglot:

In this week's issue of Metro Weekly, I begin a series of articles looking at the law. The aim of the series is to present an in-depth examination of the circumstances, consideration and passage of DOMA. In doing so, I hope to take readers to places they've not often gone -- starting with Thursday's cover story, "Domestic Disturbance," which examines the early debate over marriage within the gay and lesbian community.

Then, over at the Advocate, an interview with Bob Barr, former Representative and DOMA architect, who has now called for its repeal:

I guess what I’d say is, work on the marriage issue as a broad national issue — we ought to get the government out of it. But at the same time, try and get people to think of it as at least something that they ought to be free to decide at the state level. Leave it up to the people in the states. Then it’s easier in the next step to getting the government out of it, lock, stock, and barrel.

Meanwhile, on the legal front, the Attorney General has vacated a Board of Immigration decision. Basically, he wants to take a closer look at a deportation proceeding that involved a partnered gay couple. DOMA precludes treating binational gay couples as married, which means that they can be ripped apart and the non-American partner deported.

Attorney Lavi Soloway, a co-founder of Immigration Equality, has been one of the leading attorney-advocates on the issue of asking the government -- the Department of Justice, Department of Homeland Security and White House -- to exercise that discretion. Soloway tells Metro Weekly in an email, "This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.

We'll see....

Citizen, Non citizen (Video Sunday)

After the depressing roller coaster of last week on immigration, this (H/T Dan Savage)

Breaking: back to status quo for the binational couples.

Well, that didn't take long. According to Metroweekly,

The "hold" on same-sex married bi-national couples' green card applications -- celebrated by immigration and LGBT advocates -- is over, according to the spokesman for the agency that processes those requests.

"The guidance we were awaiting ... was received last night, so the hold is over, so we're back to adjudicating cases as we always have," U.S. Citizenship and Immigration Services press secretary Christopher S. Bentley told Metro Weekly this morning.

The agency will continue to "enforce the law," he says, which means that the Defense of Marriage Act -- which prohibits the government from recognizing same-sex marriages -- prevents those green card applications from being approved.

As Andrew Sullivan writes,

The US recognizes the marital and familial bond as the most sacred factor in deciding immigration questions. Why? Because it is understood that the right to marry whomever one chooses is an elemental human right, and that a government that insists on breaking up such marriages, or forcing those in them to leave their own country, is violating basic human rights.

Which means to say that the US government regards gay Americans as sub-human in their needs and wants and rights. Their loves and relationships mean nothing under the law every time they encounter federal authoritah. ...I am lucky to be able to apply for a Green Card on my own merits.... But most people are not so lucky. They just fall in love. Only to have their own government rip their marriage apart, or force the American into exile.

If this isn't wrong, what is?

Update More from the NY Times

...Or maybe not so good news

Some cold water on our faces regarding the break for binational couples. Metroweekly tells us the "abeyance" that might have protected them indefinitely may last no longer than a week.

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....

"The DHS official tells Metro Weekly today, however, "Suspending all cases implicating DOMA until there is final judicial resolution on DOMA's constitutionality would run contrary to our obligation and to the AG's letter and therefore DHS cannot and will not do that."

Great news for bi-national couples.

The dominoes are falling.

From Metroweekly

Following up on reports from this weekend, Metro Weekly just received confirmation from Christopher Bentley, the spokesman for the U.S. Citizenship and Immigration Services, 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 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.

Movement for bi-national LGBT couples?

We've talked before about how bi-national LGBT couples can get caught in a terrible bind because of their immigration status. This is particularly striking for married couples, who (because of DOMA) cannot reside together.

Some slow progress is being made. From the Gay City News:

In what appears to be the first such action of its type, an Immigration Judge in Manhattan has adjourned deportation proceedings for the Argentine lesbian spouse of an American citizen to allow the couple to proceed with their application to have their marriage recognized for purposes of federal immigration law.

Monica Alcota, 35, who came to the US a decade ago, married her partner of nearly three years, 25-year-old Cristina Ojeda, last August in Connecticut.

The couple’s attorneys, Lavi Soloway and Noemi Masliah, argue that their clients’ marital status should qualify Alcota for permanent residency, as would be the case with any different-sex couple....

In a March 22 hearing in the US courthouse at 26 Federal Plaza in Lower Manhattan, Immigration Judge Terry A. Bain gave the couple the go-ahead to press their claim with the U.S. Citizenship and Immigration Services (USCIS) –– a unit of the Department of Homeland Security –– through what is known as Form I-130, a petition to have Alcota recognized as “the spouse of USC.”....

Ojeda said Bain’s action “acknowledged our marriage,” and she added that when DOJ changed its posture on DOMA, she felt that President Barack Obama had “definitely” moved into the couple’s corner in their fight.

There is no way of knowing how long the DOMA litigation will go on, but it certainly will still be alive in December. It is also likely Ojeda’s I-130 application on Alcota’s behalf will still be working its way through USCIS –– or potentially through appeal of an adverse decision. In that event, Alcota’s next appearance before Judge Bain could amount to nothing more than a perfunctory status update and a further adjournment.

Of course, every day the couple can stay together is precious in their lives.

Now, let's note what this isn't. This isn't a recognition of their marriage, a green card, or a legal residency. It is simply a right to file a claim with the USCIS that they are married. That claim can still be denied.

But it's a step.

(H/T JCF)

DOMA leads to deportation

Legally married same sex spouses are treated differently under law. That was the basis of the cases in Massachusetts, which we have discussed previously. The Department of Justice is appealing the decision finding such different treatment unconstitutional.

If you have the misfortune to be of different nationalities, you can be deported or forced to live in exile. As Glenn Greenwald, a victim of this situation, notes, such treatment is inhumane.

Most people don't have careers that enable them to live outside of the U.S., and even for those who do, many are married to foreign nationals from countries which also do not provide immigration rights to same-sex couples. For the thousands of same-sex couples in that situation, the choices are grim indeed: they can choose (1) to live illegally in one country or the other, or (2) separate and live thousands of miles away -- for the indefinite future -- from the person with whom they want to share their lives. As the HRW Report put it: "thousands of U.S. citizens and their foreign same-sex partners face enormous hardships, separation and even exile because discriminatory U.S. immigration policies deprive these couples of the basic right to be together."

(Greenwald's partner is a Brazilian national and he spends much of his time in Brazil).

John Aravosis reminds us that enforcement of this viciousness is not required and in fact, the President has previously, by executive order, blocked similar deportation:

Mind you, the President decided to ignore a federal law requiring him to kick out the not-yet-American-citizen spouses of deceased Americans. They get to stay. But gay spouses? No such empathy from the Obama administration and the apologists. Suddenly it's all "we simply MUST obey the rule of law."

America: land of the brave, home of the free AS LONG AS they are straight.

Immigration reform: don't count on inclusion

The Obama Administration really REALLY wants immigration reform Surprisingly, some religious conservatives do too--for the right reasons. An unlikely alliance that can resolve a clearly untenable situation for the common good.

Of course,

the whole effort could implode if the final legislation extended family reunification provisions to same-sex couples where one spouse did not have legal status. For evangelicals, he said, “That would be a deal-breaker.”

We've talked before about entering the US while gay. There are many devoted gay couples who are either living separated lives, or obligatory expatriates. Deportation and separation. clarknt67 takes it on at Daily Kos.

Do you think the Fierce Advocates will throw Teh Gay overboard to get an immigration bill passed?

I do. I hope I'm wrong.

Entering the USA while GLBT: notes from around

My wife and I just cleared US customs and immigration on a trip home through Canada. The customs form says "one per household", although the Canadian bus driver who gave it to us advised "one per surname". But I know that my brother and sister in law, who have been married for almost 30 years, only fill out one form despite having always had different names. They walk up to the counter and say "we're married" and get no question about it--just a smile and a "welcome back".

So we went up to the US officer with one form. He snapped, "only one at a time!" I said, "but we're married, in the same household." He angrily gestured my wife back into line and processed my passport and customs form. It's not the first time this has happened--in fact, it has happened more and more, to us as though ICE has been told to degrade same sex couples. Traveling While Gay, they never let you forget you are 2nd class and your legal marriage is Officially Meaningless. This always makes me feel angry and upset. (Aside, How do you fill out a customs form when you are a single household? We don't pack our suitcases separately, we don't buy things separately. We are a couple and travel that way.)

But at least we are both US citizens. Couples who have split nationalities have a real issue. As described in this story in SF Weekly, trying to stay together when you aren't "really" married leads to confusion, pain, and horror. The US immigration service is getting nastier and nastier when people enter the country "too many times":

the agent revoked [Sang's] tourist visa for misrepresenting himself to a federal immigration officer and for being an immigrant (which technically means someone intending to stay in the country) not in possession of an immigrant visa. To reapply for a visa in the future, he would have to apply for a waiver for fraud. What she didn't say is the only way to get a waiver is to prove his absence would cause "extreme hardship" for his spouse in this country — and, of course, in the eyes of the U.S. government, Sang does not have a spouse.

Recently, a couple in Boston, legally married in 2005 but unable to reunite, received a special dispensation that allowed the Brazilian to come home temporarily:
:

On Wednesday, Oliveira returned to Massachusetts for an emotional reunion after federal immigration officials took the rare step of granting him permission to stay for one year on humanitarian grounds, clearing the way for him to try again for legal residency. His return followed personal appeals by Senator John F. Kerry, US Attorney General Eric Holder, and Homeland Security Secretary Janet Napolitano on their behalf...Unlike heterosexuals, gays and lesbians cannot sponsor their immigrant spouses for legal US residency..

The Obama administration has made a few noises about wanting to help people like this in immigratiion reform bills, but it has come to a predictable downfall amongst the bigoted minority that holds the Senate hostage. Efforts to allow legal GLBT partners to sponsor their loved one has led to backlash against reform by traditionally supportive groups, notably the Roman Catholics and increasingly, some evangelicals. Because apparently, the millions of people who might benefit are irrelevant if Teh Gay are included:

They don't seem to notice that they are threatening to tank legislation that would help tens of millions because they can't open up their hearts to 36,000 gay and lesbian couples -- but they accuse the Democrats of "political posturing" and catering to "special interests."

Hearts? They haven't any. They aren't in the least bit Christian any more.

Fortunately, groups like Catholics for Equality are challenging the continuing stonewalling by the US Conference of Catholic Bishops. The group Immigration Equality also provides resources and activism on this issue, including a press release from faith groups supporting immigration reform that is inclusive.Sarah Posner also writes

Politically, their statement may not move any mountains, but it should demonstrate how empty politicians' touting of "religious" support is if only certain religions get to call the shots because they represent more people or are better organized politically or are unwilling to compromise in any way. (See, e.g., abortion funding in health care reform.)

H/T to Pam's House Blend and Americablog Gay for continued coverage of this issue.

Catholic bishops withdraw support for immigration bill

An immigration reform bill is working its way through the channels. One issue is how to treat families of people who are in the country working legally. Despite the hype from the anti-immigrant groups like the Minutemen, most immigrants are hard working, tax paying would-be citizens who enrich our lives.

The Catholic church has long been an advocate of humane immigration policies. But it seems there is a problem this time. From the AP:

A key ally in past immigration fights, the U.S. Conference of Catholic Bishops, said it would not support a measure that has a same-sex provision.

You see, granting any civil recognition of a same sex couple is a deal-breaker for the Bishops, who would rather see people exiled, deported, and miserable than allow any single gay person to benefit. Civil rights for gay people are so dangerous that the bishops would rather see everyone else suffer, lest a GLBT person actually have a family.

The NAACP and the American Bar Association also spoke in favor of including "permanent partners" as part of an immigration bill, saying that current law amounts to discrimination.

But not for the Catholic Bishops. It's just a slightly less lethal version of the Better Dead than Wed policy.

Hearings on bi-national couples

From Andrew Sullivan, news that the Senate Judiciary Committee will hold a hearing on Wednesday learning about the obstacles faced by lesbian and gay couples under U.S. immigration law. Unlike straight couples, gay partners cannot sponsor each other for immigration, and under DOMA, have no access to the rights provided bi-national straight couples. Under the law, our families do not exist.

Andrew writes,

The premise of the marriage waiver - and of all immigration law in the US - is that tearing families or married couples apart should be avoided at all costs. But bi-national gay married couples now have to face exactly that choice between spouse and country that the US has always avoided.

Why? Because our marriages are null and void for the federal government under DOMA. Because our very being is regarded as sub-human.

Update: Some actual stories here