Josh Vandiver and Henry Velandia are married. If they were straight, Henry could apply for legal status instead of facing deportation on Friday. And, it’s the Obama administration is pushing for Henry’s deportation — and, they’re citing DOMA as the reason. Stop the Deportations explains:
All of us in the lesbian and gay binational couple community felt a surge of excitement when President Obama and Attorney General Eric Holder announced on February 23 that they would stop defending Section 3 of DOMA in federal court challenges. Nevertheless, Holder made it clear in a letter to Congress that the administration would continue to enforce DOMA until it is overturned by courts or repealed by Congress. In doing so, the Obama administration says, it is simply abiding by its constitutional duties, executing the laws passed by Congress.
However, the Obama administration’s commitment to enforce DOMA has had an unexpected effect. At Department of Homeland Security (DHS) agencies such as Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), DOMA seems to be growing stronger, not weaker. DOMA is morphing into something more powerful and more disturbing than a simple “marriage definition” statute. It has become Super DOMA. (emphasis added)
The administration—guided by a political concern that they not be perceived by their opponents as ignoring DOMA—now cites the need to enforce DOMA to justify inaction for married, same-sex binational couples even in instances where DOMA does not preclude executive branch action. Just last week, DOMA was the reason given by government attorneys to avoid exercising prosecutorial discretion in Josh and Henry’s case, a context where DOMA would not even have been mentioned before February 23.
This doesn’t have to happen. The President has the power to stop these deportation. But, there’s a political calculation at play — another “maybe if we do what Republicans want, they won’t be mean to us” calculation:
This was not the first time that executive branch remedies that could protect binational couples have been deemed out of bounds under an overly broad reading of DOMA. In March, the administration ordered USCIS to stop its “abeyance” practice (green card cases filed by married, same-sex binational couples were being put on hold and not denied). The decision to order USCIS to deny those cases was framed as “legal guidance” and blamed on DOMA. We argued that this interpretation of DOMA was wrong. Sixty members of the House and Senate and the American Immigration Lawyers Association and 81 other organizations called on the administration to restore abeyance. To be sure, DOMA does prevent USCIS from approving those cases. However, it does not prohibit them from putting those cases on hold indefinitely. So why is the administration taking this unnecessary position despite their objection to DOMA itself? This approach seems clearly designed to preemptively counter criticism from the right that this administration is in any way not fully enforcing DOMA. Binational couples in need of executive branch remedies are the victims of this overly cautious political calculus.
Unfortunately, that sounds right.
The Obama administration is trying to rip this family apart. It’s just wrong. And, they have the power to stop it.
There’s going to be a rally, Stop Deporting Henry & LGBT Spouses, on Friday in Newark at the Department of Homeland Security/Newark Immigration Court, which is in the Peter Rodino Federal Building. Details here.