UAFA re-introduced in Congress
by Seth Hemmelgarn
Federal lawmakers are set to announce the re-introduction of the Uniting American Families Act today (Thursday, April 14).
The act would allow gay and lesbian Americans to sponsor their permanent partners for legal residency in the United States, a right currently enjoyed only by married heterosexuals under immigration law.
Because of the Defense of Marriage Act, the United States does not legally recognize gay and lesbian couples and their children as families.
Congressman Jerrold Nadler (D-New York), who's been introducing the bill for more than 10 years, is set to be joined by California congressional Democrats Zoe Lofgren, Mike Honda, and Jackie Speier, among others, in making the announcement in Washington today.
"It's been a long haul, but it's really grown as an issue nationally over the last couple years," said Nadler spokesman Ilan Kayatsky.
Shirley Tan and Jay Mercado, a same-sex California couple, are expected to be in Washington for the announcement, along with their two children.
Tan, 45, applied for asylum in 1995 – a cousin had brutally murdered her mother and sister and she feared for her life when her relative was released from prison. She was arrested in January 2009 by immigration authorities for ignoring a 2002 deportation letter that she had never received.
In an interview last week, Mercado credited California Senator Dianne Feinstein (D) with once again introducing a private bill on Tan's behalf.
The bill hasn't been voted on, but Mercado said, "As long as it's in place, [Tan's] safe." However, she said their worries include what would happen if Feinstein retired.
They would look for another senator to introduce the bill, she said, but "It's better if UAFA is passed."
Tan said, "We are really hoping and pushing for UAFA to pass," not just for herself and Mercado, but for other families in the same situation.
Erica Chabot, a spokeswoman for Senator Patrick Leahy (D-Vermont), said in an email that UAFA would also be introduced in the Senate April 14.
Despite her support of Tan and Mercado, it appears that Feinstein again doesn't plan to co-sponsor UAFA when it does come up.
The Bay Area Reporter specifically asked a Feinstein staffer whether the senior California senator would support UAFA, and if not, why not?
In response, Feinstein's office emailed a statement that said, "I believe married couples, including same-sex couples, should have access to all federal benefits, including immigration status, which is denied under the Defense of Marriage Act. That is why I opposed DOMA in 1996 and introduced legislation to repeal it."
Like Tan and Mercado, San Jose resident Judy Rickard, 63, and her European-born partner, Karin Bogliolo, 70, have also been hoping they can be together without having to endure immigration hurdles.
In February, Bogliolo entered the United States through Canada. She was delayed at the airport in Ottawa for an hour and a half by U.S. immigration officials, but was eventually allowed in under a visa that will allow her to stay in the country for six months.
Bogliolo said the only reason officials ever give for detaining her is that she comes to the United States so often. She said she has never overstayed her visa.
She's hopeful that either UAFA will pass or DOMA will be repealed.
"There's always that fear in me that this time they won't let me in," said Bogliolo. "They'll just stop me at the border and I won't be able to come."
She said, "I'm not sure how hopeful I am for this Congress, because with a Republican House I think it's unlikely" the families act will pass "until after the next election, but who knows," said Bogliolo. "Miracles happen."
This year, Rickard released Torn Apart – United by Love, Divided by Law, a book that includes her and Bogliolo's story, along with others.
DOMA still in play
In an April 6 letter to U.S. Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano, Senator John Kerry (D-Massachusetts) was joined by 11 colleagues in urging immigration equality for legally married same-sex couples.
Among other things, the senators specifically asked the Department of Homeland Security to "hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation."
They also asked the department to exercise prosecutorial discretion in "commencing and prosecuting removal proceedings against married non-citizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. "
The department did not respond to a request for comment.
In March, just days after putting the applications for green cards on hold for same-sex married couples, the U.S. Citizens and Immigration Service announced it was back to processing them again – with DOMA in play.
Lavi Soloway, an immigration attorney and specialist in LGBT issues, has said that that stance would lead to the deportation of immigrants who have applied for green cards based on their same-sex marriages to American citizens.
Christopher Bentley, press secretary for USCIS, said in March that the agency has received the legal guidance it sought from the Department of Justice concerning DOMA and green card applications by same-sex married couples.
Same-sex married couples' applications are "no longer on hold," he said. And "USCIS has not implemented any change in policy and intends to continue enforcing the law." In other words, DOMA still applies.
DOMA prohibits any agency of the federal government from recognizing a marriage license granted to a same-sex couple. For binational same-sex married couples seeking a green card to enable the foreign spouse to establish permanent residence in the U.S., the law closes a door open to other married couples. Spouses and other "immediate family members" can obtain green cards without waiting for a visa number to become available.
USCIS sought clarification from DOJ after Holder announced February 23 that DOJ would no longer defend DOMA in court as meeting heightened constitutional scrutiny. DOJ had also indicated it would continue to enforce DOMA until or unless the courts determined the law was unconstitutional. But some attorneys in the immigration field questioned whether the Holder announcement might apply to immigration courts.
Even passage of UAFA wouldn't fix everything.
Marta Donayre, another Bay Area resident who's in a binational relationship, said in an interview last week, "There are a lot of concerns. LGBT immigrants don't just face issues of partnership." For example, she said, "There are a lot who are undocumented and live here, and came here to avoid persecution in their countries."
Donayre obtained asylum in 2002 because of homophobia in Brazil, her country of origin. She has a green card but said "just having a green card alone is not necessarily the be all and end all for an immigrant." She noted even a minor crime could result in someone's deportation.
Steve Ralls, a spokesman for the group Immigration Equality, said, "The criteria for lesbian and gay couples in terms of undocumented partners and spouses would be a mirror of criteria for straight married couples," so UAFA "would level the playing field."