Letter to Eric Holder as Senators Urge Protections for Same Sex Binational Couples Facing Deportation

By Melanie Nathan, May 11, 2012.

BOSTON – Following President Obama’s announcement to support same sex marriage, Senator John Kerry, along with 16 of his Senate colleagues, today renewed their call for the Obama Administration to protect married gay and lesbian couples facing possible deportation.

In a letter sent to the U.S. Attorney General and the Secretary of Homeland Security, Kerry renewed his request to hold green card applications in abeyance for bi-national gay couples while the Defense of Marriage Act (DOMA) is being challenged in the courts and legislation is pending in Congress to overturn it.

“We write to you to reiterate our request that the Administration provide relief for lesbian and gay families in which one spouse is not a U.S. citizen during this time of legal uncertainty,” Kerry wrote along with Senators Patrick Leahy, Ron Wyden, Bernard Sanders, Jeff Merkley, Daniel Akaka, Al Franken, Charles Schumer, Frank Lautenberg, Barbara Mikulski, Jeanne Shaheen, Richard Blumenthal, Sheldon Whitehouse, Barbara Boxer, Patty Murray, Kirsten Gillibrand, and Chris Coons.

“Holding green card applications in abeyance while the legality of the Defense of Marriage Act is challenged in the courts does not constitute non-enforcement and is the humane thing to do,” the members added.

It is important to note that many same-sex couples are suffering reprehensible circumstances which are not covered by the criteria outlined in this letter.  Accordingly the  request in the letter, if followed by the DOJ and DHS, does not help all couples.   For example it does not bring exiled couples home and it does not help reunite separated couples.  What is needed is urgent legislation to repeal DOMA and special VISAS/ Executive Order to help reunite couples.

The full text of the letter is below:

May 10, 2012

The Honorable Eric Holder                                         The Honorable Janet Napolitano

Attorney General                                                           Secretary

Department of Justice                                                 Department of Homeland Security

Washington, DC 20520                                              Washington, DC 20393

Dear Mr. Attorney General and Madam Secretary:

We write to you to reiterate our request that the Administration provide relief for lesbian and gay families in which one spouse is not a U.S. citizen during this time of legal uncertainty.   Holding green card applications (I-130s and I-485s) in abeyance while the legality of the Defense of Marriage Act (DOMA) is challenged in the courts does not constitute non-enforcement and is the humane thing to do.  We also ask that you do everything you can to ensure that those tasked with making these decisions are given clear and documented directives on what parameters to consider for these applications.  Too often families are unnecessarily being forced into limbo and broken apart due to a lack of clear direction.

As you know, several of us sent a letter to the Department of Homeland Security (DHS) and the Department of Justice (DOJ) on April 6, 2011 regarding same same-sex partners in which one spouse is not a U.S. citizen.  Assistant Secretary Peacock and Assistant Attorney General Weich replied to our letter on May 17, 2011.  Since that time, marriage equality rights have been extended to same-sex couples in the states of New York, Washington, and Maryland.  Moreover, since the last letter that we wrote, two more courts have found DOMA unconstitutional.

With marriage equality rights being extended to more and more citizens of this country, and with the Department of Justice’s repudiation of DOMA, we are concerned with the toll the continued denial of I-130 applications for same-sex immigrant spouses is exacting on families in this country.  Denials of these applications have caused extreme hardship for many legally married couples, forcing them to choose between leaving the country or breaking the law.

We are appreciative that in the response to our letter, the Departments agreed to look at cases affected by DOMA on a case-by-case basis based on the individual circumstances.  We are concerned that this policy is not currently being exercised at all levels of DHS and DOJ based on anecdotal reports.  We are unaware of any application being held in abeyance following a case-by-case review.

We are particularly troubled that some field offices are apparently following a blanket policy to deny green card applications for all gay spouses.  We are concerned they are not considering LGBT family ties in their consideration to exercise discretion.  This is not in keeping with the Departments’ responses to our letter.  We respectfully request that you provide any current or future written guidance given to field offices by the Departments.  If written guidance has not been given we request that clear and direct guidance be given so that all offices are consistent based on the Departments’ intent to protect families.

We remain committed to ensuring that family unity continues to be protected in American immigration law and we look forward to your response.  Thank you for your attention to this matter.

Sincerely,

John Kerry                                          Patrick Leahy                                      Ron Wyden

United States Senator                         United States Senator                         United States Senator

Bernard Sanders                                 Jeff Merkley                                        Daniel Akaka

United States Senator                         United States Senator                         United States Senator

Al Franken                                          Charles Schumer                                 Frank Lautenberg

United States Senator                         United States Senator                         United States Senator

Barbara Mikulski                                 Jeanne Shaheen                                   Richard Blumenthal

United States Senator                         United States Senator                       United States Senator

Sheldon Whitehouse                           Barbara Boxer                                     Patty Murray

United States Senator                         United States Senator                         United States Senator

Kirsten Gillibrand                               Chris Coons

United States Senator                         United States Senator

CC: President Barack Obama