May 10, 2012

The Honorable Eric Holder                                    

Attorney General                                                  

Department of Justice                                                

Washington, DC 20520                                             

The Honorable Janet Napolitano

Secretary

Department of Homeland Security

Washington, DC 20393

Dear Mr. Attorney General and Madam Secretary:

We write to you to reiterate our request that the Administration provide relief for lesbian and gay families in which one spouse is not a U.S. citizen during this time of legal uncertainty. 

Holding green card applications (I-130s and I-485s) in abeyance while the legality of the Defense of Marriage Act (DOMA) is challenged in the courts does not constitute non-enforcement and is the humane thing to do.  We also ask that you do everything you can to ensure that those tasked with making these decisions are given clear and documented directives on what parameters to consider for these applications.  Too often families are unnecessarily being forced into limbo and broken apart due to a lack of clear direction.

As you know, several of us sent a letter to the Department of Homeland Security (DHS) and the Department of Justice (DOJ) on April 6, 2011 regarding same same-sex partners in which one spouse is not a U.S. citizen.  Assistant Secretary Peacock and Assistant Attorney General Weich replied to our letter on May 17, 2011.  Since that time, marriage equality rights have been extended to same-sex couples in the states of New York, Washington, and Maryland.  Moreover, since the last letter that we wrote, two more courts have found DOMA unconstitutional.

With marriage equality rights being extended to more and more citizens of this country, and with the Department of Justice’s repudiation of DOMA, we are concerned with the toll the continued denial of I-130 applications for same-sex immigrant spouses is exacting on families in this country.  Denials of these applications have caused extreme hardship for many legally married couples, forcing them to choose between leaving the country or breaking the law.

We are appreciative that in the response to our letter, the Departments agreed to look at cases affected by DOMA on a case-by-case basis based on the individual circumstances.  We are concerned that this policy is not currently being exercised at all levels of DHS and DOJ based on anecdotal reports.  We are unaware of any application being held in abeyance following a case-by-case review.

We are particularly troubled that some field offices are apparently following a blanket policy to deny green card applications for all gay spouses.  We are concerned they are not considering LGBT family ties in their consideration to exercise discretion.  This is not in keeping with the Departments’ responses to our letter.  We respectfully request that you provide any current or future written guidance given to field offices by the Departments.  If written guidance has not been given we request that clear and direct guidance be given so that all offices are consistent based on the Departments’ intent to protect families.

We remain committed to ensuring that family unity continues to be protected in American immigration law and we look forward to your response.  Thank you for your attention to this matter.

Sincerely,

John Kerry
United States Senator

Bernard Sanders
United States Senator

Al Franken
United States Senator

Barbara Mikulski
United States Senator

Sheldon Whitehouse
United States Senator

Kirsten Gillibrand
United States Senator

Patrick Leahy
United States Senator

Jeff Merkley
United States Senator

Charles Schumer
United States Senator

Jeanne Shaheen
United States Senator

Barbara Boxer
United States Senator

Chris Coons
United States Senator

Ron Wyden
United States Senator

Daniel Akaka
United States Senator

Frank Lautenberg
United States Senator

Richard Blumenthal
United States Senator

Patty Murray
United States Senator

CC: President Barack Obama