Tuesday, December 21, 2010

An Executive Order for Same-Sex Binational Couples?

by Jeremy B.

Note: O4I volunteer Jeremy B has conducted this excellent roundup of all the information that is currently on the Internet about whether President Obama can indeed enact an executive order to alleviate the gratuitous cruelty faced by same-sex binational couples in light of the fact that there is no protection of our relationships at the federal level. What appears below may not be 100% accurate, but it is the existing published information that we have access to. Out4Immigration invites any one with a legal or constitutional background to help correct any inaccuracies that appear below so that the record can be set straight about an Executive Order (contact us at info@out4immigration.org). We do know that many things can be done administratively and judicially to help our cause - they may however be smaller in scope than an Executive Order.

1. A new strategy for helping out immigrants is outlined in a U.S. Citizenship and Immigration Services (USCIS) memo from 2010. In that memo, staff members for USCIS catalogued the various options that are open to the President.
“USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements.”
The text of the memo asserts that USCIS’s discretionary power to use deferred action is unlimited. In order to suppress opposition to the flexing of this muscle, the USCIS staffers who wrote the memo suggest that deferred action be used to exempt “particular groups” from being subject to removal proceedings. In this memo, they explicitly admit that “deferred action” — or using prosecutorial discretion not to deport someone — would be “a non-legislative version of 'amnesty'.”

USCIS has noted that the memo is for internal purposes only and does not in any way reflect possible measures or changes to immigration in the future.

Fox News notes that deferred action is a “suspension of deportation hearings for illegal aliens. With “deferred action,” illegals are allowed to apply for employment authorization cards.”

The President has the power to sign an executive order to exempt “particular groups”, such as same-sex binational couples, from being deported. This would not make them legal, but would allow them to remain in the country while applying for employment authorization cards.
Source: http://www2.nationalreview.com/memo_UCIS_072910.html

2. The President could sign an executive order to amend current USCIS policies on green card applications or the USCIS board could modify its own guidelines. In 2005, the USCIS modified its rules to allow transgender couples to apply for immigration status if the individual had undergone surgery and lived in a state where the marriage is recognized. The President could sign an executive order or the USCIS could modify its policies making it discriminatory to request the gender of the candidates on their application, as long as the couple is legally married and meets all other requirements. After all, in their memo from this year they state:
“USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations.”
Source: http://www.immigrationequality.org/template.php?pageid=4

3. In an article by Chris Waddling, a binational outreach director of Marriage Equality USA, for San Jose Mercury News published on 4/8/2009, the writer is positive that the President has the power to sign an executive order to enact “permanent partner” measures for immigration.
Source: http://out4immigration.blogspot.com/2009/04/san-jose-mercury-news-opinion-obama-can.html

4. Melanie Nathan of LezGetReal suggests the possibility of an Executive Order by the President in an article published on 7/20/2010, entitled, “SCREAM: President Obama Act Now for Binational Same Sex Couples”. In the article, Ms. Nathan states, “Mr. President, Sir – please if all you do is make one executive order for us – let it be simply to allow gays and lesbians who are in permanent partnerships with some form of contractual nexus to be included in the current Immigration and Equality Act.”

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