Andrew Harmon has a report with some not great news about the Obama administration's decision on how to handle cases of married, binational couples. Given all the rhetoric we've heard from the administration, this doesn't make any sense:
The Obama administration is standing firm against calls by LGBT rights groups and lawmakers to put a blanket hold on deciding green card petitions from married, binational gay couples. Instead, those petitions in all likelihood will continue to be rejected, denying much-needed stability for gay families stuck in the nation’s immigration system.Politics, not sound legal analysis. Who made the political calculation on this one?
While the administration has taken affirmative steps in recent months to ensure that foreign nationals married to American spouses of the same sex are spared from actual deportation, officials told LGBT rights groups in a recent, high-level meeting that they will not hold such marriage-based green card petitions in abeyance. The decision is being criticized by some advocates as a campaign-year calculation based on politics, not on sound legal analysis.
As you might expect, advocates are not happy, especially because of the implications for the couples:
Immigration Equality and other advocacy groups have argued for months that the administration need not reject the green card applications as part of its commitment to enforcing DOMA, which a second federal judge ruled unconstitutional in an opinion issued Wednesday. Putting the applications on hold would not grant permanent residency, but it would help individuals avoid accruing unlawful status in the country, a civil violation that can jeopardize future employment or the ability to obtain such critical legal documents as a driver’s license.
Rachel Tiven, executive director of Immigration Equality, said that despite her group’s extensive arguments as to why the administration has the power — and, given the president’s position that DOMA is indefensible, the duty — to act on behalf of binational gay couples, officials summarily rejected their request to hold green card applications in abeyance.
“We wanted to make clear to the administration that this is a priority for us, that it’s a new big ask of the LGBT community,” Tiven said of the coalition of LGBT groups at the January 30 meeting. “In many, many meetings over the past six months, with different players and different agencies, [the administration] has been quick to say, without hesitation, that our legal arguments are quite sound. So it’s frustrating to hear this idea from them that it’s basically no big deal for individuals to fall out of lawful status.”
And, the analysis that this was a political decision, not based on policy, is particularly disturbing:
Most gay binational couples seeking lawful status are not in active deportation proceedings, however. And the case-by-case review has vexed advocates who argue that the best way to protect gay binational families is to hold all green card applications in abeyance until DOMA is struck down or repealed by Congress.
“Nobody has offered a legal basis as to the decision that’s been made" by the administration, said Crystal L. Williams, executive director of the American Immigration Lawyers Association. “All they’ve said is that they’re not going to [hold the green card petitions in abeyance]. So it has to be a political decision. How can they say that DOMA is legally indefensible, yet proceed to deny married couples the legal right to be together in the United States?”
Seriously. This has to be fixed. The decision could hamper the futures of married, binational couples once DOMA is found unconstitutional. And, again, who made this stupid political calculation?
