When President Obama stated that DOMA is unconstitutional and refused to defend the law in court, he made it clear that despite his opposition to the law, it would still be enforced. "The President has an obligation to defend duly enacted laws," a Department of Justice (DOJ) attorney who prefers to remain anonymous said. "But, what that actually means isn't so clear. Does it mean that it has to be enforced in the same way when it comes to every affected person? I don't think so, but that's up to Attorney General Holder."
My friend at the DOJ is correct, of course. And, it is not only up to Mr. Holder. Immigration judges, the men and women who are part of the Executive Branch that decide deportation, asylum and a plethora of other immigration-related cases, are given exceedingly wide latitude and discretion in their cases. They can weigh various factors differently and, given ongoing changes in the law, they can decide that certain factors are to be weighed more heavily in any given case.
DOMA affects legally married gay bi-national couples by, in part, preventing the foreign national spouse from being granted an alien relative visa, i.e., being allowed to stay in the country because of a marriage to a U.S. citizen. Because DOMA denies federal recognition to same-sex marriages and an alien relative visa is a benefit attendant to federal marriage recognition, these foreign nationals could never be granted a visa.
It sounds like all alien relative petitions of legally married gay bi-national couples are all the same. If they are, then it stands to reason that in a DOMA-controlled world, they should all be denied out of hand. That really isn't the point. With DOMA on the books, these foreign nationals cannot be granted visas, but it does not mean they all have to be deported tomorrow. Each married foreign national has the right to file his petitions, offer evidence and have a hearing before USCIS officials and immigration judges.
So, USCIS's abeyance policy was meant to allow for some clarity to the President's interpretation of DOMA, but it says nothing about an immigration judge's discretion to decide a particular case. An abeyance policy that prevents all immigration judges from denying all alien relative petitions of legally married bi-national couples — whether by policy of the USCIS or by executive order from the President — would have been a pro-gay equality result, but it would be an affront to an immigration judge's discretion. It would also be an end run around DOMA because an abeyance policy until repeal or final judicial decision would be little more than promising to enforce DOMA with your fingers crossed behind your back. An executive order would be worse, as it would be the President shoving a seemingly all-powerful unitary executive down the throats of Congress.
Though these bi-national couples are in danger of being torn apart by the discrimination enshrined by DOMA, perhaps it is better that we allow each immigration judge to use what he or she knows about DOMA and about a given couple to adjudicate the case before him. This policy weeds out fraud — a delicate subject we don't like to talk about but certainly exists in the gay world — and allows the Administration to fulfil its duties to enforce duly enacted laws. Our job is to tell these couples' stories, to highlight the tragedy of DOMA and to use the power of legal advocacy to keep these men and women together as long as possible.