UPDATED: Major Breakthrough on Binational Gay, Lesbian Couples

In a significant reprieve for the same-sex partners of American citizens facing the threat of deportation, the Obama administration on August 18 announced that such actions would no longer be pursued against foreign nationals unless they are identified as security threats, convicted criminals, or repeat immigration law violators.

The policy was rolled out in a letter from Homeland Security Secretary Janet Napolitano to Senate Majority Leader Harry Reid.

In a telephone conference call with reporters, a senior administration official explained that the focus on those “high-priority” categories represents the latest in the government’s efforts to un-“clog” a deportation system that currently has 300,000 cases pending.

The Obama administration has already made a significant dent in shifting deportations toward priority cases, the official said. In fiscal year 2010, more than half of those deported were security risks or criminal convicts –– up from just 30 percent before the president took office –– and two-thirds of the remainder were repeat immigration law offenders, including deported individuals who had reentered the country.

The new policy was announced in response to a letter sent to President Barack Obama from 22 senators earlier this year asking that the Department of Homeland Security (DHS) categorically stop deportation proceedings against young people who would have been covered had the Dream Act been approved by Congress. That bill aims to offer permanent residency to college students and military service personnel who are undocumented immigrants that arrived in the US as minors.

Like same-sex partners and other law-abiding undocumented immigrants, these young people should now largely be in the clear.

According to the administration official, cases currently in the system will be reviewed to see whether they represent “high priority” situations where DHS sees a pressing need to move toward deportation. If not, any pending procedures will be “stayed.”

“They will not be taken out of the system,” the official said, “but those cases will be set aside.”

As part of evaluating cases, some will be identified as “very low priority” –– those involving law-abiding immigrants with strong community or family ties. The administration official emphasized that LGBT families are considered “families” for purposes of such evaluation.

In the past, the government, relying on the Defense of Marriage Act, has refused to recognize the legal marriages of same-sex binational couples.

Immigration enforcement officials, however, have always had “prosecutorial discretion” in handling specific cases. On June 9, Jane Minichiello, chief counsel in the Newark Immigration and Customs Enforcement (ICE) office, exercising such discretion, recommended closing deportation proceedings against Henry Velandia, a Venezuelan immigrant who lives in Princeton with his American husband.

On June 17, ICE’s director, John Morton, circulated a memo to agency offices nationwide urging that such discretion be applied to weed out cases that did not merit agency enforcement focus.

On August 11, another ICE office, in California, used its prosecutorial discretion to move for the closing of deportation proceedings against Alex Benshimol, a gay Venezuelan man who faced the prospect of being separated from his American husband. That news became public two days after the Napolitano letter was announced.

In her letter to Reid, which was the administration's response to the earlier Dream Act letter to the president, Napolitano stated that the principles Morton spelled out in his June 17 memo would now become uniform policy across ICE offices nationwide.

The administration official who spoke to reporters stated that those undocumented workers identified as low enforcement priorities would be eligible for employment authorization on a case-by-case basis. Five weeks after having his deportation case closed, Velandia, who is a dancer and dance instructor, received such authorization, for a one-year period.

Immigration rights advocates were heartened by the news. In a press call following the administration briefing, officials from Immigration Equality, which advocates on behalf of binational same-sex couples, the Legal Action Center, and the Immigration Policy Center welcomed the news, particularly the administration’s explicit acknowledgement of LGBT families as qualifying when immigration officials evaluate family ties.

Victoria Neilson, Immigration Equality’s legal director, noted that there are an estimated 36,000 binational same-sex couples in the US –– nearly all of them potentially at risk prior to the new DHS announcement. Still, that number represents just a fraction of the 300,000 deportation cases and of the estimated ten to eleven million undocumented immigrants in the US.

Lavi Soloway, who founded Immigration Equality but is now in private practice and represents Velandia in New Jersey and Benshimol in California, said, “Everyone who works in this system wants uniformity.”

He explained, “Rather than allowing each ICE deportation office to assess whether a particular person warrants having their case closed, decisions will now be made at the top, with the full force of the administration behind them. It is as close as you could get to a uniform policy. It takes us one step closer to assuring us that all deportations will stop.”

As news of DHS’ revised policy emerged, Soloway was due in Immigration Court in Denver the following day on behalf of Sujey Pando, who came to the US at 16, after being thrown out of her home in Mexico, where she suffered physical and sexual abuse from an uncle. She lived in the US with her mother and American stepfather, until they threw her out when they learned she is a lesbian.

Living on her own, she came to the attention of immigration officials when she was stopped for a routine traffic violation in 2008. Despite the fact that she and her wife, Violeta, married in Iowa last November, Pando faced her final deportation hearing on August 19.

According to Soloway, the Denver Immigration Judge, Mimi Tsankov, “spent 45 minutes methodically considering the procedural posture of the case,” and, in the end, “set aside the intended purpose of the hearing, “ noting that the nation’s deportation policy is “fluid” and “in a state of flux.”

Tsankov set a follow-up hearing for January to consider Violeta Pando’s application that her wife be allowed to stay in the US based on their status as a married couple.

Pando’s is one of five cases Soloway’s Stop the Deportations Project is due in court about in the next several weeks.

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