Whilst the Defense of Marriage Act (DOMA) remains on the books the Obama administration is unable to place on hold marriage-based green card applications for bi-national same-sex couples stated Secretary of Homeland Security Janet Napolitano at a White House briefing.
The Washington Blade reported that Napolitano asserted DHS can’t take such action, which could slow the deportation process in some extreme cases, and protect bi-national gay couples from separation.
“The legal advice we have received is that we can’t put them in abeyance because DOMA remains the law,” Napolitano told the Washington Blade. “We’d like to see that law overturned. In practical terms, however, most of those cases fall within very, very low priority in terms of what we’ve done over the last years, which is to build priorities into immigration enforcement, so we’re not seeing, in practicality, those deportations occur.
In 2009, DHS took such action for the widows of U.S. citizens when Napolitano ordered U.S. Citizenship and Immigration Services to grant deferred action widows who are foreign nationals and suspend adjudication of visa petitions and their adjustment applications.
Asked why her department couldn’t take similar action for bi-national same-sex couples, Napolitano replied, “Well, because of DOMA.”
LGBT advocates — most recently Sen. Kirsten Gillibrand (D-N.Y.) and other senators in a letter to the Obama administration — have been calling on the Obama administration to place on hold the marriage-based green card applications for bi-national couples, especially because a final determination from the Supreme Court on the constitutionality of DOMA seems imminent. But each time, DHS has responded that it’ll continue to enforce DOMA as it remains on the books.
The Obama administration has taken steps to address this issue. For example, in October, the Department of Homeland Security issued guidance “stipulating immigration officers should consider “long-term, same-sex partners” as families when considering whether to exercise prosecutorial discretion in the potential deportation of an undocumented immigrant.
