The Obama Administration’s Temporary “Fix” for the Bi-National Same-Sex Couple Problem

An important part of the federal-level gay rights agenda has been attempting to find a way around the failure of federal law to acknowledge the reality of bi-national same-sex couple families for purposes of immigration law.  Nobody knows exactly how many people are affected by this, but there are enough bi-national same-sex couples for this to have emerged as a real issue.  A foreign national comes to the U.S. on a student visa, temporary work visa or tourist visa and while here becomes involved in a serious same-sex relationship.  In some cases, this leads to registration as a civil union or domestic partner or a marriage under the law of a jurisdiction that provides same-sex marriage.

Normally, when a foreign national married an American citizen, the American citizen is able to sponsor them for permanent residency in the United States, eventually leading to citizenship.  However, the law as written does not extend this right to non-marital couples, and under the Defense of Marriage Act same-sex couples who marry do not obtain any legal status for their relationship as a matter of federal law.  As more and more jurisdictions are providing a recognized legal status for same-sex couples (in a matter of weeks this summer, New York enacted a Marriage Equality Act and Rhode Island enacted a Civil Union Act, amidst serious discussion about legislative activity on same-sex marriage next year in Maryland, new litigation seeking same-sex marriage in New Jersey, the first stage of an effort to re-enact same-sex marriage in Maine by petitioning for a ballot question, and perhaps the litigation end-game in the struggle to strike down Prop 8 and restore the right to same-sex marriage in California), the issue whether bi-national same-sex couples can stay together in the U.S. has become much more visible.

After several intimation over the past few months that the Obama Administration was inching towards an administrative solution to the problem, most prominently including a June 17, 2011, memorandum by Director John Morton of the U.S. Immigration and Customs Enforcement (ICE) agency on priorities in focusing enforcement activities, the administration finally went public with a new approach on August 18, in a letter by the Secretary of Homeland Security, Janet Napolitano, to U.S. Senate Majority Leader Harry Reid.  Reid had written on behalf of himself and a group of other senators who are co-sponsors of the DREAM Act, legislation intended to provide favored immigration status for foreign nationals who serve in the U.S. Armed Forces and for individuals brought to the U.S. as children who have grown up here and sought and obtained higher education in the U.S., inquiring about what could be done under existing law to protect these individuals in the absence of legislative action.

Napolitano's letter stresses that the administration has been shifting enforcement priorities to concentrate on deporting undocumented foreign nationals who were involved in criminal activity, and the proportion of such cases has increased sharply on the deportation case docket.  The letter now says that Director Morton's memo is "being implemented to ensure that resources are uniformly focused on our highest priorities."  Instead of merely being a policy expression for the guidance of regional offices in targeting enforcement actions, the memo will be the basis for a concerted effort to coordinate what is going on around the country and, on a case-by-case basis, to grant relief.

Wrote Napolitano: "Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities.  The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities.  In addition, the working group will issue guidance on how to provide for appropriate discretionary consideration to be given to compelling cases involving a final order of removal.  Finally, we will work to ensure that the resources saved as a result of the efficiencies generated through this process are dedicated to enhancing the identification and removal of aliens who pose a threat to public safety."

Napolitano cautioned that the new approach "will not provide categorical relief for any group," but instead will involve a case-by-case review to determine whether it serves enforcement priorities to deport particular individuals.  What Napolitano did not say in the letter, but what a spokesperson said in a nationwide press briefing after the letter was released, was that one priority under immigration law is to keep families together, and that pursuant to Morton's June 17 memo, the administration is taking the position that same-sex couples can constitute a family for this purpose.  Avoiding the effect of DOMA means that they must avoid making some categorical rule of recognizing same-sex marriages and other legal statuses, such as registered civil union or domestic partners, as such, as this would likely provoke a lawsuit from the usual anti-gay sources.  What they can do within the broad requirements of existing law, which does delegate substantial discretion of the Secretary in terms of administration, is to embrace the broader concept of family – which does not rest on legal distinctions of marriage, civil union, DP – and to take the view that U.S. enforcement priorities would not be advanced by breaking up law-abiding families.

At the outset, I called this a temporary fix.  That's because it is not even embodied in a formally adopted regulation, much less a legislated statute.  It is more like an announcement of an approach for interpretation and the exercise of discretion.  It doesn't really create an enforceable right of any kind, and like all administratively adopted policies, it will only continue in effect after the next presidential election if whichever administration is in place beginning January 21, 2013, wants to continue it.  For now it appears likely to provide welcome relief to numerous binational same-sex couples, but I would not take this item off the agenda.  Inclusion of this protection as part of an immigration reform statute should remain a priority, in order to "lock in" this protection to the extent possible for the long term.  Striking down DOMA, ironically, while helping same-sex couples who are married and thus could cleam equal rights under existing statutory law, would not necessarily help civil unions or domestic partnerships or cohabiting same-sex couples who have not sought a legal status, so the issue may remain alive even if current litigation ends up invalidating DOMA.

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