…As the nation remains entrenched in a debate over what to do about an estimated 11 million illegal residents, the Obama administration has released new guidelines to provide flexibility in individual cases without conflicting with other federal laws. Because [DoMA] remains the law, the administration has stopped short of a blanket policy change on deportation cases involving married same-sex couples.
Instead, John Morton, director of Immigration and Custom Enforcement, sent a memo in June instructing his agents and lawyers to focus their deportation efforts on illegal immigrants who are criminals, gang members or security threats. He also urged them to "exercise discretion" in favor of illegal residents who have a "spouse, child or parent" who is a U.S. citizen or who is "primary caretaker" for someone who is ill, disabled or a child.
The directive did not mention legally married same-sex couples. So [same-sex married] couples … must navigate a muddled and subjective process, one that gives immigration officers the power to allow illegal same-sex spouses to remain in the country — provided the agent does not cite marriage as the reason — or to proceed with deportations.
Gay rights advocates say the flexibility helps, but means married same-sex couples remain vulnerable to a range of outcomes.
Two weeks ago in New Jersey, Los Angeles attorney Lavi Soloway, who represents a number of married same-sex couples in deportation cases, scored a victory when the government agreed to stop the deportation of Henry Velandia, a Venezuelan man who is legally married to Josh Vandiver, a 30-year-old graduate student at Princeton University. Immigration officials said the deportation was not a priority. "That was a good sign, but it was only one case," Soloway said.
On Wednesday, a Southern California couple — Doug Gentry and Venezuelan native Alex Benshimol, who married last year in Connecticut — appeared before a San Francisco judge and asked the government to use its discretion to drop deportation proceedings against Benshimol. Judge Marilyn Teeter gave immigration officials 60 days to respond. Teeter postponed the next deportation hearing until September 2013 if the government does not drop the case.
Soloway, who is also their attorney, praised the judge's "compassion and understanding" and said he would "continue to advocate for termination of these proceedings and a moratorium on all deportations of spouses of lesbian and gay Americans."
The discretion directive came too late for Richard Dennis and Jair Izquierdo. Last December, Dennis, a New York banker, watched as his partner was put on a plane back to Peru. The two had a civil union in New Jersey and had applied for a green card, but that did not deter the government from deporting Izquierdo after his tourist visa expired.
"We just got a perfunctory 'denied' from them, with no explanation given…. The whole system seems very arbitrary," Dennis said.
The administration has sent a mixed message on the Defense of Marriage Act… Based on the [Holder letter declining to defend DoMA], Democrats in Congress asked in April for a suspension of deportations involving legally married same-sex couples until the New England case is resolved. The administration refused, saying it could not grant relief "to the entire category of cases" involving married gay couples. Obama has said that as president, he has a duty to enforce laws on the books, even if he disagrees with them.
Typically, married couples do not face the threat of deportation, even if one spouse is not a U.S. citizen. Immigration law favors family reunification, and a U.S. citizen usually can obtain documents to keep a foreign-born spouse in the U.S. Gay rights advocates interpreted Morton's memo as a signal that, despite the marriage act, the administration does not view deportations of illegal same-sex spouses as a priority.
"This is the head guy saying to them: 'We have limited resources, so go after drug dealers and terrorists. Don't devote your resources to splitting up a law-abiding couple,' " said David Leopold, a Cleveland attorney and past president of the American Immigration Lawyers Assn.
But Morton's memo drew a sharp rebuke from the union that represents immigration agents and from Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee. Chris Crane, who represents 7,000 immigration agents, accused Morton of creating a "law enforcement nightmare" for immigration agents. His comments raised the prospect that agents around the country may not follow Washington's guidance…
Steve Ralls, a spokesman for Immigration Equality, a group pushing for an end to deportations of same-sex couples, said "we would like a clarification from the administration. No doubt something is changing, but there is no blanket policy. It is an unofficial evolution."