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August 26, 2011

ICE moves away from deporting same-sex spouses

Washington, D.C.--Bi-national gay and lesbian couples in which one partner has overstayed their visa will no longer be a priority for Immigration and Customs Enforcement after an August 18 announcement by the Obama administration.

The new policy is aimed primarily at people who were brought to the United States by their parents as young children, many of whom did not know that they had never actually attained U.S. citizenship.

The policy mimics much of the effect of Sen. Dick Durbin’s long-stalled Development, Relief and Education for Alien Minors Act. Many young immigrants go through high school oblivious to their legal status, only learning of it when they apply to college or for student financial aid.

Under the new policy, Secretary of Homeland Security Janet Napolitano can aid illegal residents on a case-by-case basis. The administration’s policy does not automatically grant amnesty, but will focus ICE and immigration court resources on the deportation of criminals and those believed to be a threat to national security.

According to the New York Times, the policy would help those with family members in the United States, including same-sex spouses.

“The new policy will end, at least for now, the deportations of gay people legally married to their same-sex American citizen partners, and it may extend to other people in same-sex partnerships,” mused New York attorney Richard Socarides, a Clinton administration LGBT advisor.

Opposite-sex spouses can sponsor their husband or wife for immigration, but the Defense of Marriage Act prevents same-sex couples from doing that, even if they are legally married.

Under the new policy, the low-priority residents can apply to work in the United States and would probably get permission, according to the administration.

The administration, between Homeland Security and the Justice Department, will now have to review 300,000 current and pending deportation cases to determine which are high-priority, which are low-priority, and where relief should be given.

The policy change had an immediate effect for at least one same-sex couple. In California, Venezuelan Alex Benshimol was facing deportation proceedings because he overstayed his 1999 visa. He and his husband Doug Gentry married last year in Connecticut.

In another case in California, just before the administration indicated the change, an immigration judge a few days earlier had dismissed deportation proceedings against Raul Sinense, a Filipino who lives in Oakland with his spouse, Peter Gee.

The new policy may be used to allow Anthony John Makk, an Australian, to remain with his husband, Bradford Wells. The couple live in San Francisco, and Makk is Wells’ primary caregiver. Makk was ordered to leave the country by August 25 after immigration officials cited the Defense of Marriage Act as the reason he could not use a spousal petition to seek permanent residency in the country.

Rep. Nancy Pelosi has contacted ICE on the couple’s behalf, but no response has come yet.

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