De Leon: Gay Binational Couples React to DHS Deportation Guidance

A protest against the Defense of Marriage Act in Chicago

A protest against the Defense of Marriage Act in Chicago. (Photo: Michael Lehet/flickr)

The U.S. Department of Homeland Security sent guidance to Immigration and Customs Enforcement (ICE) attorneys Thursday which clearly identified enforcement priorities among pending deportation cases. In short, it said who should be deported and who gets to stay.

The directive clarified the “Morton Memo” released last June which listed some factors ICE officers, agents and attorneys should consider when apprehending, detaining and deporting undocumented immigrants.

Many immigrant advocate groups welcomed ICE’s new policy, which is intended to focus deportations on high-level criminal offenders. But gay binational couples and their advocates are up in arms because the new guidelines do not specify gay unauthorized immigrants married or partnered to American citizens as deportation cases that should be “carefully considered for prosecutorial discretion on a case-by-case basis” by ICE .

Rep. Jerrold Nadler (D-NY), released the following statement Thursday:

I am very concerned by the Administration’s failure to state in its written Guidance to ICE attorneys, released today, that families of LGBT binational couples should be treated equally, like all other families in America. While I appreciate prior commitments by DHS that LGBT family ties will be taken into account in immigration enforcement decisions — and that this will be explained to ICE agents — without such a directive in writing, there is a serious risk that such families could be wrongfully divided. With the Administration taking an otherwise positive step to make immigration enforcement fairer, it is extremely frustrating that families of LGBT binational couples remain at risk. I will be working to ensure that those families are also protected.

Steve Ralls, Immigration Equality’s Director of Communications told the Washington Blade that the omission of gay binational couples “isn’t just deeply disappointing; it is also detrimental to LGBT immigrants and their American spouses and partners.”

“By declining to address, in writing, the unique circumstances surrounding those couples, DHS has left too much room for interpretation and left too many couples vulnerable to separation,” Ralls said.

Judy Rickard, an American citizen married to a British national and the author of Torn Apart: United by Love, Divided by Law, is directly affected by ICE’s policy. Judy and her wife were hoping for deportation reprieve through the use of prosecutorial discretion by ICE attorneys. The exclusion of gay binational couples from the DHS guidelines has left Rickard disappointed and anxious.

“By not making clear and unambiguous directions to DHS and ICE employees, we are at risk for variations in interpretation of the procedures that have been ‘understood’ but unevenly applied already this year. If I were to be subject to the process without crystal-clear and enforceable directions, I would be in fear of separation. LGBT binational couples have been assured by President Obama, Attorney General Holder, Secretary Napolitano and Director Morton that we would not be in imminent danger of deportation, that our families would be kept together. Now, this move to create the language that will be used for agents across the country leaves us out and that does not bode well for how things will go. I am upset and fearful for us all,” Rickard said.

Lin McDevitt-Pugh, an Australian national who lives with her American wife in the Netherlands where their marriage is recognized, also feels let down by the Obama administration.

“An American citizen should have the right to live in their own country, with their legal spouse,” she said. “This is the case for heterosexual couples, and not the case for homosexual couples. When love exile Bob Bragar met Presidential candidate Barack Obama, Obama asked why he lived in the Netherlands. When he heard that Bob could not live with his Dutch husband in the US, Obama said ‘That’s not fair, that’s really not fair.'”

McDevitt-Pugh and her wife moved to the Netherlands because they feel “wanted and honored” there. Gay marriage has been legal in the country since 2001. “We don’t live in the US because we can’t,” she stressed. “We have been actively pushing for change in the US immigration law since 2002. Living in the Netherlands, we have tasted fairness. We like it. We want it in the USA. We want US immigration law to include same-sex permanent partners.”

As a foreign-born spouse of an American citizen myself, I am not disappointed only because this comes as no surprise. As a minority multiple times over —immigrant, gay, and of color—I realize that people like me have little political clout and are the first to be thrown under the bus.

I am also aware that full reprieve for binational couples like us will only come either through the repeal of the discriminatory Defense of Marriage Act (DOMA) or passage of immigration bills such as the Uniting American Families Act (UAFA). Neither of which will happen anytime soon because of the political stagnation in DC.

This does not mean that I or others in my situation are powerless or without hope for the future. We continue to speak out and tell our stories. We support and work with organizations and individuals who are committed to justice and equality for all people. We remind our neighbors of our nation’s founding ideals and appeal to our better angels.

We ask friends and family, especially those whom politicians and political parties listen and cater to, to be proactive.

Last week, while visiting my husband’s family in North Carolina, my sister-in-law asked me what she can do to help us. I told her that she could share our story and explain the challenges faced by thousands of gay binational couples to those who might not be aware of this injustice. I suggested that she contact her congressperson and senators and ask them to sign on to the repeal of DOMA and cosponsor UAFA. These politicians would at least welcome a straight, married, professional and church-going woman to their offices.

The omission of gay binational couples from DHS’ deportation guidelines is unfortunate, to say the least. All the more reason to keep the fight and not lose hope. History is on our side and we will prevail.

Related Podcast: DREAM Activists Protest Alabama’s Anti-Immigration Law

You can follow Erwin de Leon on Twitter or read his blogFeet in Two Worlds is supported by the New York Community Trust and the John S. and James L. Knight Foundation, with additional support from the Mertz Gilmore Foundation and the Sirus Fund.

AboutErwin de Leon
Erwin de Leon is a Policy Researcher and writer based in Washington, DC. He writes on immigration, LGBT, and nonprofit issues. You can follow him on Twitter at @ErwindeLeon.