At one point, Princeton University graduate Josh Vandiver popped out of the audience, identifying himself as the "American half of a same-sex couple" involved in a high-profile fight for his spouse's green card. He was following up on Rep. Holt's questioning of John Sandweg, DHS Counselor to the Secretary, about whether, in light of Attorney General Eric Holder's announcement that his office's finding that the Defense of Marriage Act (DOMA) is unconstitutional the DHS would continue to deny U.S. citizens with same-sex spouses the same benefits of marriage green cards for their loved ones available to different-sex spouses, "what policy is being formulated that would respond to the activism we've done?"
Mr. Sandweg replied, "The president's directive is to enforce the law as currently written until a court decision. There are a couple of cases we are holding in abeyance, but we are going to enforce the law until DOMA is declared unconstitutional." His colleague Seth Grossman, Chief of Staff for the DHS Office of the General Counsel backed this up, "What the attorney general says is that as a litigation position he will not defend [DOMA] in court," but his decision "makes it crystal clear that the executive agency must enforce the law as it did before."
In saying this, DHS stepped on hopes raised by a story broken in the Daily Beast indicating that two regional offices of the United States Citizenship and Immigration Services were no longer rejecting marriage green card applications from same-sex couples, and would approve these pending authorization from the DHS:
Sarah Taylor, who heads the Washington district for USCIS, gave a presentation on Wednesday night to more than 100 members of the local AILA chapter. During a Q&A session afterward, she was asked whether her office had put cases involving same-sex marriages on hold. Taylor said that it had, according to Brenda Oliver, the AILA chapter’s chair. The lawyers in the room, Oliver added, responded with claps, smiles, and cheers.
Her colleague Greg Collett who runs the Baltimore regional office said the same, the story reported.
The fact that government attorneys running these agencies contemplated the approval of same-sex green card applications suggests that the directive is not "crystal clear" in requiring DHS to violate the civil rights of same sex couples, but that the agency is making a political decision, one that would only be made at the behest of the White House.
[UPDATE confirming DHS plan to overturn USCIS abeyances: see Tuesday article in Metroweekly, "DHS Official: Bi-National Immigration Case Abeyances Could End Within a Week."]
This was just one very obvious example of the Obama White House failing to take advantage of its discretion to decrease deportations and increase the protection of U.S. residents' civil rights that drew concern, eloquently articulated by Lucas Guttentag, founding national director for 25 years of the ACLU's Immigrant Rights Project, and now a Robina Foundation Distinguished Senior Fellow in Residence at Yale Law School.
In response to frequent statements by the DHS officials that they were bound to "enforce the law" Guttentag pointed out that in light of DHS discretion and the absence of any immigration legislative reform in the near future that might incentivize bumping up numbers in order to attract Republican support, the harsh policies were pointless: "If one thought comprehensive immigration reform were around the corner," massive arrests and deportation might make sense, "but given there is not going to be significant legislative reform what's the role of presidential leadership on this issue?"
Guttentag added later:
It is a mistake for the administration to view this solely as a matter of legislation. [The DHS] could adopt regulations on the adjudication of waivers so people could safely apply for the immigration status for which they are eligible. They could adopt court interpretations to get individual hearings at which their danger and flight risks are adjudicated.Of course even these high-ranking DHS officials were not the right audience for his astute insights and suggestions. They were not making these decisions. The White House is. If Obama wanted the DHS to use its discretion, Sandweg and Grossman would be in Princeton making the sort of announcement their counterparts at the USCIS were making. (The USCIS has to defer to the DHS Office of General Counsel instruction and they were the ones in Princeton saying, forget it.)
The fact that people such as Guttentag and Rep. Holt were having this conversation at a Princeton roundtable and not in the White House was perhaps the most discouraging takeaway from the event. An activist who attended and has been to these White House meetings said the relevant staff in the White House listen but no one is supporting their proposals. The individual lacks "confidence that meetings at the White House are useful to move proposals forward."
That the Obama administration is not taking advantage of its ability to protect civil rights by virtue of running the government, and is indeed going in the opposite direction by using its discretion to implement nationwide the InSecure Communities program by 2013, means that Obama is focused on a craven calculus of his re-election, and not the civil rights of millions of people whose lives are being crushed by his policies.
