Wednesday, Freedom to Marry released a video produced in partnership with In The Life Media telling the moving story of Cristina Alcota and Monica Ojeda, who, though legally married, face deportation or separation because the Defense of Marriage Act denies married same-sex couples immigration protections. (The video has also been released in Spanish here.)
Also Wednesday, White House Press Secretary Jay Carney was asked again about the possibility of administration issuing a moratorium on deportation proceedings pertaining to noncitizen spouses of LGBT American citizens.
Carney ducked the question, offering only that the administration would like to see this issue addressed under a comprehensive immigration reform legislation. But Monica and Cristina can't wait that long. In March, Monica Alcota received an 11th hour reprieve of her scheduled deportation. But the couple is scheduled to reappear before a judge in December. Monica's case will have to be resolved long before we can reasonably expect to see a bipartisan, LGBT-inclusive, comprehensive, immigration reform bill pass the House and the Senate and land on the President's desk.
But there is another possible avenue of relief.
The question of what to do with these couples has become a great source of interest of late. A court strike down of the Defense of Marriage Act as unconstitutional and the Justice Department's agreement, has many people asking, why in matter of such immense importance as the permanent separation of family, is no prosecutorial discretion being exercised?
Chris Geidner of Metro Weekly had the opportunity to follow up on an earlier question he asked of Carney on a deportation moratorium in May. At that time, Carney declined to specify if the administration was looking at exercising any discretionary power it has to help couples like Monica and Cristina.
Again, Wednesday, Carney dodged the matter.
The White House Transcript:
Q. Yes. I’m just wondering, in June 2009 the Department of Homeland Security issued a memorandum on deporting certain widows and widowers of U.S. citizens. At the time, Homeland Security Secretary Janet Napolitano said that, “smart immigration policy balances strong enforcement practices with the common-sense practical solutions to complicated issues.” Yet, in May, asked about requests by advocates for a moratorium on deportation of foreign partners and same-sex binational relationships, similar to the 2009 moratorium, you said the President can’t just wave a wand and change the law. Can you explain the difference there?
MR. CARNEY: I mean — the President can’t just wave a wand and then change the law. I think that was in response to a broader set of issues that some folks are understandably advocating for –
Q. No, it was specifically about the issue of –
MR. CARNEY: And the President has called for comprehensive immigration reform for a reason, because he thinks that we need to move in a comprehensive way to get there, and — because that kind of comprehensive approach has in the past enjoyed bipartisan support, and he believes that if we talk about it in the right way and we push for it, and folks out in the country push for it, that we can return to a situation where there will be bipartisan support for it again in the future.
It is grating to hear Carney pull out the magic wand canard when we are speaking of policy, not fairy tales. The issue of a moratorium is neither unprecedented nor is it just some fanciful idea of people who don't understand how things work. An impressive group of savvy and powerful voices have collated around the call for a moratorium.
Geidner was clearly attempting to ascertain if Carney could or would elaborate what differentiates these cases in the eyes of the Department of Homeland Security?
Carney did not grant Geidner the respect of entertaining his query seriously.
I am curious if Mr. Carney thinks the editorial board of Washington Post also thinks the administration has a magic wand? Three weeks ago the WaPo called on the admin to put a moratorium on these deportation proceedings in an Op Ed titled “Don’t penalize undocumented gay immigrants in civil unions with U.S. citizens.” They wrote about Eric Holder's use of a magic wand intervention in another case, saying:
The attorney general has vacated the court decision and asked the Board of Immigration Appeals whether Mr. Dorman’s civil union makes him a “spouse” under New Jersey law and whether, absent DOMA, he would be considered a “spouse” under immigration law. Mr. Holder should erase any confusion by declaring a moratorium on removal of foreign nationals in state-recognized same-sex unions until federal courts determine DOMA’s constitutionality. He should ensure that the government is not focusing on breaking up otherwise law-abiding families.
Erasing the confusion seems prudent and practical. At this point the LGBT community is rushing from fire to fire, trying to stop the American Government from tearing our families apart. A blanket decision is called for; do our families matter or do they not?
They seem to matter the most when the community can assemble a critical mass of media attention. That doesn't seem like a pragmatic, long-term solution to help the estimated 50,000+ couples in this situation.
I'm curious if Carney believes House members believe in magic wands?
Rep. Rush Holt of New Jersey sent a letter to head of Homeland Security, Janet Napolitano on March 31, it said in part:
In 2009, the Department of Homeland Security made the decision based on humanitarian grounds to put a moratorium on deportations of widows of U.S. citizen husbands who were killed during the wars in Afghanistan and Iraq before they received their green cards. In light of Attorney General Holder's new guidance, I am asking you to suspend the deportation of all spouses of citizens in a same-sex marriage until a decision is reached on DOMA.
How about Senators? Do Senators believe in magic wands?
Senators Patrick Leahy, John Kerry and ten others sent a note to Attorney General Eric Holder. It read in part:
In addition, we ask the Department of Homeland Security (DHS) to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would otherwise be eligible to adjust their status to lawful permanent resident but for DOMA. We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.
As Monica and Cristina face another hearing in December, Carney can offer them only the hope of a bipartisan, LGBT-inclusive immigration reform legislative relief.
Comprehensive, LGBT-inclusive immigration reform won't come in time for Monica and Cristina.
Comprehensive, LGBT-inclusive immigration reform won't come in time for Henry and Josh. Henry came within a day of deportation in May and, like Monica and Cristina, the couple faces another immigration hearing in December.
Comprehensive, LGBT-inclusive immigration reform won't come in time for Bradford and Anthony, profiled last week in the San Francisco Chronicle. Together 19 years, Anthony, an Australian citizen faces the end of his current visa on June 13, and will be vulnerable to a possible deportation order afterward. Anthony says he will not risk the legal repercussions of overstaying. Says Bradford, “It's devastating, the idea of him leaving in a couple of weeks and not being able to get back in. I don't know how I'm going to manage. My stomach is in knots.” Bradford has severe health problems and depends on Anthony as as his only caregiver.
Comprehensive, LGBT-inclusive immigration reform won't come in time for David and Marco. Together six years, they wed in 2008 in California. David has been living under the threat of a deportation order since 2006. Marco has lived under the threat of losing the love of his life. Marco discusses life on indefinate hold: “We have had to make heartbreaking decisions such discontinuing the adoption process; quitting the idea of starting a business, all just because we do not know what the future is going to be.”
Comprehensive, LGBT-inclusive immigration reform didn't come in time for Andy and Achim. Like many couples the damage is done. Faced with inevitable separation by the US Government, Andy said goodbye to America to live with Achim in Germany, because as Andy said, “We wanted to live our lives together WITHOUT a expiration date.” Germany is ironically, home to neither man. Achim is an Austrian citizen, but a patchwork of European Union laws made it feasible for them to live there, even as they must both live far from their extended families.
Andy is just one of many LGBT Americans who has been made to choose between love and country.
Comprehensive, LGBT-inclusive immigration reform won't arrive in time to help Doug and Alex. The Cathedral City, CA couple was profiled last week by the Associated Press' Amy Taxin, in their own “last ditch” effort to stay together. It involves applying for a green card, using their status as legally married in Connecticut last year. Doug isn't hopeful, but has few options, he says, “It can't hurt (to refile). All they can do is deny it again.”
The legal tactic of applying for a spousal green card was once discouraged by attorneys. But the metrics of that have changed. One man responsible for that turn is Lavi Soloway. Soloway heads up the DOMA Project and the Stop The Deportations blog. (He has suggestions for taking action here.)
Soloway is quoted in Taxin's AP article:
Lavi Soloway, an immigration attorney in Los Angeles, said he started encouraging some clients to apply last year after a federal judge in Massachusetts ruled the 1996 Act is unconstitutional because it interferes with a state's right to define marriage. Soloway saw further encouragement this year when Holder said the executive branch would no longer defend the Act as constitutional and the immigration agency temporarily held off making a decision on same sex couples' cases.
“The forum in which we're testing the issue is immigration court,” said Soloway, who represents a dozen couples including Gentry and Benshimol. “It is the best possible place for this discussion to be taking place because it involves parties that have broad discretion to address just
the kinds of concerns we're talking about.”
Lavi also spoke in depth about the legalities surrounding these cases with Marriage News Watch last month.
Soloway references President Obama's immigration speech delivered on May 10, in El Paso, TX wherein the President said:
“Now, I know that the increase in deportations has been a source of controversy. But I want to emphasize: We are not doing this haphazardly. We are focusing our limited resources on violent offenders and people convicted of crimes — not families, not folks who are just looking to scrape together an income. As a result, we increased the removal of criminals by 70 percent.”
The people in this diary are not criminals, so the question is begged, why are the DHS's “limited resources” focusing on them?
“Haphazard” actually seems the perfect word to describe the administrations current policy on LGBT spousal immigration rights. The LGBT activist community seems to be rushing from deportation fire to deportation fire, armed our buckets full of Tweets and Facebook posts. We bring protest signs and we are lucky to have a Rolodex of sympathetic media that will amplify our cries to stop separating our families.
The President also said this:
“I don't believe the United States of America should be in the business of separating families. That's not right. That's not who we are.”
The people in this post are not criminals. What they are, in every definition of the word, are families. Actually, every definition but one: legally. We as a country are still in the process of sorting out the question of whether gay people who love each other are “family” in the eyes of the law. The question is playing out contentiously in the legislative chambers and in the courts.
And while the politicians and the jurists sort it out, the executives should err on the side of compassionate caution and let these families stay intact until the question is finally settled once and for all, one way or another. The status quo on LGBT immigration is accurately described by Representative Jerry Nadler, as a system of “gratuitous cruelty.”
Stop the deportations, all of them. Time to get it together, Secretary Napolitano, Attorney General Holder and President Obama, issue the moratorium.