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Erwin de Leon

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Gay Binational Couples Need More Than Discretion

Posted: 10/08/2012 8:43 am

Last week, a letter from Department of Homeland Security (DHS) Secretary Janet Napolitano had some lesbian, gay, bisexual, and transgender (LGBT) and immigrant activists celebrating. Napolitano put into writing what had been verbally promised by DHS: gay binational couples are recognized like any other family and foreign-born spouses will not be deported under a directive issued last year.

The directive, known as the Morton Memo, gives Immigration and Customs Enforcement (ICE) personnel leeway--prosecutorial discretion--in deciding which immigrants get reprieve from deportation. These include those who have lived in the U.S. since childhood, minors, the elderly, victims of serious crimes, veterans and members of the armed services, people with serious disabilities or health problems, and individuals with close family ties (such as marriage to a U.S. citizen or permanent resident).

LGBT binational families should be able to breathe easy under this mandate. Advocates however have been pushing for clearer guidelines from day one, seeking confirmation that discretion would apply to lesbians and gays. Immigration is a federal matter, and legal same-gender marriages and civil unions are not recognized by the U.S. government due to the odious and discriminatory Defense of Marriage Act (DOMA).

Spurred by a letter from 84 members of Congress, Napolitano finally affirmed in writing that gay families are to be treated no differently.

"In an effort to make clear the definition of the phrase 'family relationships,' I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase 'family relationships' includes long-term, same-sex partners," Napolitano wrote.

"This is a huge step forward," said Rachel B. Tiven, executive director of Immigration Equality, the leading advocate for LGBT immigrants and refugees. "Until now, LGBT families and their lawyers had nothing to rely on but an oral promise that prosecutorial discretion would include all families. Today, DHS has responded to Congress and made that promise real. The Administration's written guidance will help families facing separation and the field officers who are reviewing their cases."

While, no doubt, this spells relief for some binational couples, the fact of the matter is that this is not progress, much less a real solution to a problem which shouldn't exist in the first place.

Foreign-born spouses who are magnanimously granted reprieve by the administration remain in legal limbo and without status, unable to work or go anywhere outside the contiguous states. Gay Americans are still unable to petition their loved ones for permanent residency unlike their straight counterparts.

And what happens under an anti-LGBT Romney White House? I'm willing to bet that this directive goes out the window.

What is needed to address the unfair treatment and tenuous existence of LGBT binational families is the repeal of DOMA. Short of that, we need legislation which grants the same federal benefits enjoyed by straight couples to legally married gay binational couples. The harsh reality of partisan politics in both the Supreme Court and Congress makes neither likely to happen.

Now, if President Obama is re-elected however, he can issue an executive order recognizing legally married same-gender couples, granting them immigration and other benefits. Judging from the past four years though, the chances of this happening are slim to none.

Sorry for being such a sourpuss.

Originally posted on Feet in 2 Worlds.

 

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