2011 will be remembered as a rollercoaster year for the entire LGBT
community, but particularly for gay and lesbian couples in binational
relationships. With President Obama’s declaration and decision earlier this
year that the Federal Court stop defending DOMA, tens of thousands of
same-sex binational couples believed relief was finally in sight after many
years of discriminatory immigration laws. Additionally, a number of recent
court decisions have stayed the deportation of many gays and lesbians
for whom time had “run out.” The same-sex binational community was
further encouraged when ICE issued a statement in June 2011, granting
agents guidelines for prioritizing deportations, making partners in binational
relationships a low priority.
That same community is now disappointed that the most recently released
ICE guidelines fail to specifically mention gay and lesbian binational couples,
instead opting for this vague language,
“Cases that are not considered high priority include those who have
an “immediate family member” who is a U.S. citizen, …and government
attorneys can interpret that term to include a same-sex spouse or partner.”
Without concrete definition in the new guidelines, gay and lesbian binational
couples will be at the mercy of individual ICE agents who may or may
not use their discretion when prioritizing these cases. No one can be
sure that each and every ICE agent will recognize a same sex partner as
an “immediate family member.” Clear, definitive language is necessary. We
urge that “permanent partners of LGBT Americans” or similar language as
outlined in the Uniting American Families Act (UAFA; H.R. 1537; S. 821) be
integrated into these guidelines immediately.
We urgently ask that you specifically include LGBT binational couples in the guidelines issued on November 17 to Immigration and Customs Enforcement (ICE) attorneys. Those guidelines cite circumstances in which a deportation case can be considered low priority and/or dismissed. Undocumented persons with “immediate family” in the United States and no criminal record are prime candidates for such treatment.
However, without using clear language that defines LGBT relationships as “immediate family”, you have left it to individual agents to make their own determination in these cases. While one agent could consider President Obama’s declaration earlier this year that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and allow an LGBT binational couple to stay together in the United States, another might read “immediate family” to not include such a couple.
This ambiguity must be prevented. Clarification is extremely necessary.
We echo the call from Rep. Jerrold Nadler:
“Without such a directive in writing, there is a serious risk that [same-sex binational] families could be wrongfully divided. With the administration taking an otherwise positive step to make immigration enforcement fairer, it is extremely frustrating that families of LGBT binational couples remain at risk.”
Rep. Nadler’s stance is supported by 67 other members of Congress on record calling for clarification to very specifically define LGBT couples as “immediate family” in this regard. Additionally, hundreds of Representatives and Senators support bills like the Uniting American Families Act (UAFA), Reuniting Families Act and the Respect for Marriage Act, all of which support a much needed remedy to define LGBT Americans with foreign partners as immediate family and end the immigration discrimination that has torn apart and exiled so many under DOMA.