DOMA Immigration Cases Create Balancing Act For Administration

by Carlos Maza

Controversy is brewing yet again over the Defense of Marriage Act’s (DOMA) impact on bi-national same-sex couples. Debate over the deportation of gay foreign nationals was reignited last week after Attorney General Eric Holder issued a decision vacating an earlier decision by the Board of Immigration Appeals (BIA) to apply Section 3 of DOMA to the case of a gay foreign national who had entered into a civil union with an American citizen:

The brief, two-paragraph decision directs that the Bureau of Immigration Appeals (BIA) to revisit the case involving Paul Wilson Dorman to determine whether, “absent the requirements of DOMA,” Dorman’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act.

The announcement prompted a U.S. immigration judge on Friday to halt the deportation proceedings of Henry Velandia, a Venezuelan national whose green card petition was denied earlier this year despite his legal marriage to his husband, Josh Vandiver, who is an American citizen.

Holder’s decision has been heralded by some as a sign that the administration is looking for ways to avoid continuing to deport gay and lesbian foreign nationals who are legally married to (or have entered into civil unions with) American citizens. Lavi Soloway, co-founder of Immigration Equality, told Metro Weekly:

This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian bi-national couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.

The Justice Department’s handling of bi-national immigration cases has generated significant criticism from right-wingers who have accused the administration of refusing to enforce the law since late February. The Justice Department, however, has been quick to clarify that it will continue to enforce DOMA, despite Holder’s decision. As The New York Times reported:

Tracy Schmaler, a spokeswoman for Mr. Holder, said he had interceded in Mr. Dorman’s case only because he wanted the immigration appeals court to decide issues he felt had been overlooked. “As we have made clear, we will continue to enforce DOMA,” Ms. Schmaler said.

As Soloway has pointed out, however, it’s possible for the president to exert his executive discretion to halt deportation proceedings without abandoning DOMA’s enforcement:

While DOMA is still the law of the land and must be enforced, it cannot be an excuse for failing to institute administrative remedies such as ''abeyance'' to put a halt to deportations, separations and exile of lesbian and gay bi-national couples. This administration has a duty to ensure that our families are not torn apart because of an unconstitutional law that it refuses to defend.

The Obama administration has the power to make this happen and must act now.

If the Obama administration really is afraid of looking like it isn’t enforcing DOMA, maybe it’s time for a major priority shift. It’s a waste of time to worry about the concerns of anti-gay activists who are looking for any excuse to bash the administration’s handling of DOMA, as evidenced by those who are already accusing Holder of lying about the law’s continued enforcement.

At some point, the administration should come to accept that preserving the marriages of committed, loving gay and lesbian bi-national couples is more important than trying to appease an increasingly unreasonable and shrinking group of anti-gay conservatives.