I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.  The two men started a successful business and are pillars of their community.  But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.  This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

Last week, a federal appeals court struck a blow against DOMA.  The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.  However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter.  Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.  We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner. 

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions.  When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move.  For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.  Also, people who fear coercive family planning in China are eligible for asylum.  For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief. 

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.  In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).  More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.  Witness the new regulations on waivers.  Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.  This often meant a long separation from family members while the waiver was processed.  Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.  So why not do something for the thousands of same-sex couples faced with forced separation?  Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.  If DOMA is repealed or overturned, the government could re-visit this definition of persecution.  But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.  We should grant asylum to gay and lesbian spouses of U.S. citizens.