Published on Thu, Aug 18, 2011
Gay and lesbian married bi-national couples like San Francisco’s Bradford Wells and Anthony John Makk may get some relief from the threat of deportation under the Defense of Marriage Act, thanks to action by the Obama administration today.
In a letter to Sen. Dick Durbin, D-Ill., Department of Homeland Security Secretary Janet Napolitano said a new working group will be established to identify low-priority cases for immigrant deportation. The administration will exercise prosecutorial discretion, widely practiced by all law enforcement officers, to identify which low-priority deportation cases to ignore. The policy is also posted on the White House website.
Napolitano cited a memorandum issued last June by Immigration and Customs Enforcement, or ICE, which contains a long list of mitigating factors to weigh in deciding whether to pursue deportation. These include whether the immigrant is married to a U.S. citizen, as Makk is, as well as whether the immigrant is the primary caregiver of a citizen, which Makk also is. Other factors include such things as length of lawful stay in the United States, criminal record and the like.
Sexual orientation is not specifically mentioned, but Mary Kenney, a senior staff attorney with the Legal Action Center arm of the Immigration Policy Center said the administration has indicated that same-sex marriages are included in the definition of family for the purposes of the enforcement memo. She called the move “very encouraging.”
Napolitano said President Obama asked her to respond on his behalf, having said that “it makes no sense to expend our enforcement resources on low-priority cases.” She said the June memo is now “being implemented.”
Wells and Makk have gotten huge media attention, including a spot on CNN, since the Chronicle’s second story on their case this month. You read about their case first in the Chronicle last June.
Most of the attention on today’s action is focused on DREAM students, the illegal children of immigrants who know no other home but the United States. Durbin’s DREAM Act, repeatedly defeated in Congress, would allow such immigrants to earn legal status by completing two years of college or military service. They would get additional latitude under the new guidance.
But Kenney said the memo covers much more than children and definitely will apply to same-sex married couples who want to pursue permanent resident status for an immigrant spouse. Before the Napolitano letter, the June guidance was left to the discretion of agents on the ground. Now it’s policy.
Using prosecutorial discretion allows the administration to put Defense of Marriage Act immigration cases on hold. DOMA bars all federal benefits, including immigration benefits, to same-sex couples. The immigration cases would likely be deferred until challenges to DOMA’s constitutionality are decided by the Supreme Court, which is expected as early as next year or by 2013.
The Federation for American Immigration Reform, which opposes widening immigration, slammed the decision as “administrative amnesty” and “a sweeping overhaul of the nation’s immigration policy without approval by Congress.” This is not exactly accurate as the cases are still pending, but held in abeyance until DOMA is resolved by the Supreme Court.
Published in the San Francisco Chronicle