The U.S. Bureau of Citizenship and Immigration Services has decided to halt deportation cases where gay immigrants are married to a same-sex U.S. citizen.
The USCIS released a statement Monday announcing it has decided to honor gay marriages and unions in its deportation proceedings for gay foreign nationals in order to comply with the president’s directive on the Defense of Marriage Act.
“USCIS has issued guidance to the field, asking that related cases be held in abeyance (suspension), while awaiting final guidance related to distinct legal issues,” said Christopher S. Bentley, the Department of Homeland Security’s general counsel, in a statement.
The department’s decision has already been applied to at least one same-sex couple to date. Princeton graduate student Josh Vandiver married Venezuelan dance instructor Henry Velandia in Connecticut last year after Velandia’s request for an employer-sponsored visa was denied. Afterwards, Velandia filed for a marriage-based green card. The USCIS denied his request in January, citing DOMA.
DOMA defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize same-sex marriages from another state.
However, since President Barack Obama’s instructions last month to the Justice Department to cease defending the 1996 federal law, the USCIS has, according to a report from the Daily Beast, informed Baltimore, Md., and Washington, D.C., attorneys in the advocacy group American Immigration Lawyers Association (AILA) that cases involving married gay and lesbian couples would be put on hold. Jenny Levy, a spokesperson for the AILA, said the USCIS statement means that deportation cases for immigrants such as Velandia are “basically on hold” for now, meaning that they are temporarily safe from deportation.
Obama’s February instruction has introduced some doubt as to the implementation of the law. Last month, the president ordered the Justice Department to cease defending DOMA on the grounds that the Clinton-era law did not meet higher standards of scrutiny and is therefore unconstitutional. Yet the DOJ later affirmed the legality of DOMA in a March 2 lawsuit against the department by a DOJ attorney seeking benefits for her lesbian partner, noting that the president’s order is legally non-binding.
Mathew Staver, founder and chairman of the Liberty Counsel, denounced the USCIS decision while calling the Obama administration’s actions “lawless.”
He clarified that the presidential order to cease defending DOMA was directed towards the DOJ’s court defense, not to other federal agencies. DOMA, he stated, is still law.
“It governs the definition of marriage from a federal standpoint under the federal laws for every federal agency including the immigration services. They must abide by that federal law,” Staver insisted. “No federal agency can act contrary to that law.”
Currently, there are several legal challenges against the federal marriage law. Additionally, there are bills in both the U.S. House and Senate to repeal DOMA. Republican House Speaker John Boehner announced that the House would put together a Bipartisan Legal Advisory Group to defend DOMA. There appears to be no current movement on the two repeal bills.
For now, Levy explained that the recently issued abeyance also applies to the applications of gay foreign nationals for green card applications.
“Typically if a same-sex couple applies for an I103 and they are not in a state that recognizes gay marriage, the application is denied,” she said. Now, “those petitions will be held at abeyance,” Levy noted, which means no decision will be made one way or the other.
When questioned about the advice AILA would give, Levy told The Christian Post that it would not counsel gay foreign nationals joined to a same-sex citizen to apply for a green card while it seeks guidance on DOMA. While those joined to Americans in gay marriage are temporarily safe from deportation, AILA says homosexual couples should not expect automatic approval for green card applications.