Napolitano's same-sex couples directive: a milestone in immigration justice Until now, even legally married gay couples were discriminated against in immigration cases. Meaningful reform begins at last
Things seemed grim, last fall, for John Brandoli, a US citizen in Massachusetts, and his Trinidadian husband, Michael. Though their marriage was recognized by the state, it did not come with the benefit they most urgently needed. Because of the federal Defense of Marriage Act (Doma)
, John could not sponsor Michael for a green card.
As a result, Michael was facing deportation to Trinidad, one of the most dangerous places in the hemisphere for gay people. Michael's American husband and mother-in-law were very anxious when they called my organization, Immigration Equality, for help. Our team – which talks to lesbian, gay, bisexual and transgender immigrants every day – mounted a media and advocacy campaign to stop Michael's deportation. Thanks to his determined family, and the support of Senator John Kerry, he won.
In August 2011, the Obama administration had announced that couples like Michael and John shouldn't have to pull out all the stops to stay together. The administration pledged to review pending deportation cases and grant "prosecutorial discretion" to those who had committed no crime and could show equities like ties to an American family. When the administration described the plan on phone calls with press, advocacy groups, and congressional staffers, they stated clearly
: "We consider LGBT families to be families in this context."
This was a watershed. The American immigration system had never considered LGBT families like John and Michael to be families in any context. Until 1990, LGBT foreigners could be barred from entering the US entirely. America's immigration system is based on family unification, but gay families don't count.
Bitterly, many gay immigrants feared even revealing their relationship with a US citizen. If they did, it could be used against them by immigration officials as evidence they planned to overstay a visa. (Ironically, a genuine commitment is precisely what a straight couple needs to show to be granted a green card based on their relationship.) If an LGBT immigrant does overstay, they fall into a netherworld in which getting a paycheck or opening a bank account becomes impossible. An undocumented person is at risk of being arrested, even if her only crime is staying with the person she loves.
After years of hiding, how would someone who qualified for prosecutorial discretion know they should tell the government about their family? How would they prove their relationship if living in one of the 44 US states that forbids gay couples to marry, or one of the 31 that doesn't even offer domestic partnership?
Immigration Equality's lawyers heard these questions from all over the country. We heard from couples whose lawyers didn't know to say they were gay. We heard from others who asked for discretion, only to be told by officials that no gay-inclusive policy existed. John and Michael's initial request for discretion was denied, even though Michael met all the criteria.
So, we pressed the administration to put its promise in writing.
A month after the initial announcement, House minority leader Nancy Pelosi, Congressman Jerry Nadler of New York, and 67 other members of Congress wrote to department of homeland security (DHS) secretary Janet Napolitano to ask for written guidelines, on the grounds that:
"Without specific guidance, it is unlikely that [those] making decisions about individual cases will be aware that LGBT family ties are a factor for consideration."
When DHS issued written guidance, it did not mention LGBT families, and Napolitano's written response to the members' letter was vague. This summer an even larger group of lawmakers wrote to Napolitano again, saying:
"It would be beyond senseless to see LGBT persons with family ties here in the United States deported simply because the affected persons, their attorneys, and/or ICE officials were unaware of DHS's verbal policy."
On Thursday, Napolitano replied:
"I have directed ICE to disseminate written guidance to the field that … 'family relationships' includes long-term, same-sex partners."
Her move is an immediate help to LGBT people who are undocumented. It is the first time the immigration system will categorically recognize an American citizen's relationship with an immigrant as a positive factor in an immigration case.
However, we are still a long way from equal access to green cards and other immigration benefits. There are several solutions to this problem, including repeal of Doma and passage of pending legislation that would equalize US immigration law.
In the meanwhile, the administration could stop denying green card applications from married gay and lesbian couples, and instead, just put them on hold until the pending lawsuits that challenge Doma are decided by the US supreme court, likely by June. Until then, LGBT couples now have some protection because of Napolitano's directive. It's an important first step.