Obama Administration Recognizes Marriages of Gay and Lesbian Binational Couples, Expanding Deportation Policy to LGBT Families

Deputy Press Secretary for the Department of Homeland Security announced a surprising shift in the policy of the Obama administration with respect to married same-sex couples facing deportation: “When exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen.” August 1, 2012 

August 2, 2012 statement by Attorney Lavi Soloway, founder Stop The Deportations – The DOMA Project:

“After a two-year campaign urging the Obama administration to stop the deportations of spouses of gay and lesbian Americans, we welcome the announcement by the Department of Homeland Security (DHS) that it will formally recognize same-sex marriages as part of its year-old ‘prosecutorial discretion’ deportation policy and other related enforcement matters.

“By articulating the first federal policy to specifically recognize marriages of gay and lesbian couples as a basis for agency action, the Obama administration has indicated to deportations officers, Immigration Judges, and Immigration & Customs Enforcement prosecutors, and Citizenship and Immigration Services adjudicators that our marriages must be considered when determining whether a case is deemed low priority for deportation. The Administration should issue clear guidance memorializing this announcement without delay so that all families can be protected under a clear, consistently applied prosecutorial discretion policy.

“This move is significant beyond the immigration context, as it constitutes the first time any agency of the federal government has created a policy explicitly recognizing same-sex marriages.

“By giving legal effect to the lawful marriages of gay and lesbian couples, the Obama administration has demonstrated what we have argued all along to be true: that executive branch agencies can create policies to mitigate the discriminatory impact of DOMA on gay and lesbian binational couples, even while DOMA continues to prevent approval of those couples’ green card petitions.

“Last summer a senior administration official promised, in a background briefing to the media, to take into account ‘LGBT families’ in its deportation policy. DHS backtracked from that language in October 2011, when it issued a letter to members of Congress stating only the ‘community ties’ of LGBT individuals facing deportation would be considered, which unambiguously abandoned the previous, more inclusive reference to ‘LGBT families.’


“Yesterday’s announcement acknowledging the marriages of gay and lesbian couples is a giant step forward honoring the struggle of thousands of loving couples who are subject to DOMA’s most punishing consequences.  Hundreds of determined and brave binational couples who demanded an end to ‘DOMA deportations’ deserve tremendous credit for moving elected officials and the administration forward on this issue.

“Still, gay and lesbian Americans are not able to sponsor their spouses for green cards because of DOMA, depriving married couples of the right to build a future together, tearing apart families by separating spouses from each other and, in many cases, from their children.

“To address this immediate, irreparable harm, the administration should stop denying green card petitions filed by gay and lesbian binational couples and instead put those cases on hold pending a ruling by the Supreme Court on the constitutionality of DOMA expected next year. We are hopeful that the White House will follow today’s announcement with additional measures that will bring all lesbian and gay binational couples one step closer to full equality.”