Confusion Over
Policy on Married Gay Immigrants
Published: March 29, 2011 - New York Times
An announcement by immigration
officials in Washington on Monday that they were delaying decisions on some
immigration cases involving gay couples led to a surge of expectations among gay
advocates that the Obama administration had taken a small but significant step
toward recognizing same-sex
marriage.
But on Tuesday, immigration officials moved swiftly to clarify their position
and dampen those hopes, saying they have not made any policy changes that would
provide an opening to gay couples. The episode added to the legal confusion that
has followed the administration’s
determination last month that the law that bars the federal government from
recognizing gay marriages, the Defense of Marriage Act, is unconstitutional.
In this case, the misunderstandings and soaring hopes arose from an effort in
recent days by officials at Citizenship and Immigration Services, the federal
agency that awards immigration status, to clarify their policy on granting
permanent residency green cards to immigrants legally married to American
citizens who are gay. While it is routine for American citizens in heterosexual
couples to obtain green cards for their foreign spouses, the Defense of Marriage
Act has barred such status for immigrants in same-sex marriages.
That situation has long been a focus of criticism by gay rights groups, who
argue that the law is particularly discriminatory against immigrants. “If you
are in a bi-national couple that is heterosexual, you get to stay here and work
here,” said Richard Socarides, a lawyer who is president of Equality Matters, a
gay rights advocacy group. “If you are gay, you get deported.”
In February, President
Obama and Attorney General Eric
H. Holder Jr. announced that the administration would no longer defend the
Defense of Marriage Act in the courts, although it would continue to enforce the
law, which was adopted in 1996, until it is changed by the courts or by
Congress.
The position has led to a host of dilemmas for federal agencies that continue
to enforce the law. This month, Immigration Equality, a group that advocates for
immigrants in gay couples, wrote to immigration officials urging them to suspend
deportations of immigrants in same-sex marriages and suspend other cases
involving gay couples until the courts render a final decision on the
constitutionality of the Defense of Marriage Act.
The most recent crossed signals started at meetings last week between
immigration lawyers and officials from Citizenship and Immigration Services. The
officials said that some cases involving gay married couples had been suspended
while the agency sought guidance from its lawyers about issues related to the
marriage act.
On Monday, Christopher S. Bentley, the chief spokesman for the immigration
agency, confirmed in a statement that cases nationwide involving married gay
couples had been suspended. What Mr. Bentley did not say was how long that hold
might last and what issues the agency was seeking to clarify.
But the elated reaction among gay advocates and couples was immediate.
Describing Mr. Bentley’s statement as “a darn big deal,” Rachel B. Tiven, the
executive director of Immigration Equality, called it “the first domino to fall”
for gay American citizens with foreign spouses.
Ms. Tiven said she understood that immigrants in married gay couples could
now apply for green cards and instead of being automatically denied, their cases
would be suspended until the courts decided the validity of the marriage act.
Word also went out across the country. In Princeton, N.J., Josh Vandiver and
Henry Velandia, in the middle of a public forum on immigration issues, embraced
and cheered. They said they had heard from their immigration lawyer that the
agency’s announcement might mean at least a temporary reprieve from deportation
for Mr. Velandia.
Mr. Vandiver, 29, is an American citizen and a political science graduate
student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were
married last August in Connecticut, one of the states that recognize same-sex
marriages. Their application for a green card for Mr. Velandia was recently
denied, and he is facing deportation as early as May.
But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship
and Immigration Services “has not implemented any change in policy and intends
to follow the president’s directive to continue enforcing the law.”
Mr. Bentley said the agency’s field offices had suspended cases for a short
period, perhaps a week or two, while lawyers clarified a “narrow legal issue”
concerning the marriage act. He said the agency would probably resume action on
same-sex marriage cases in coming days and would continue to deny immigration
status to foreigners based on those marriages.
Immigration lawyers tried on Tuesday to sort out the meaning of the events.
“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents
Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand
that “if they file for immigration status, they may be putting themselves at
considerable risk of deportation.”
Mr. Velandia, a dancer, formed a dance company in Princeton, HotSalsaHot, and
teaches salsa classes there.
Mr. Vandiver said he and Mr. Velandia do not see an alternative to living in
the United States.
“The prospect of Henry’s deportation is extremely frightening,” he said. “We
are committed to staying together, but the world is really closed to us. We both
think it’s dangerous to return to Venezuela as a same-sex married couple.”