Binational Couple: ICE Refuses to Stop Deportation Despite New DHS Immigration Policy

The Immigration and Customs Enforcement (ICE) office in Philadelphia has refused to stop the deportation that would separate Anton Tanumihardja, an Indonesian citizen, from his American husband, Brian Andersen, despite new guidelines issued by the Obama administration that are intended to set aside all low-priority deportation cases and keep all families together – including gay and lesbian couples.

Specifically, ICE rejected their request for “deferred action,” a remedy that allows individuals meeting specific criteria to stay in the country indefinitely, even though they are technically deportable. At a meeting today with a Philadelphia deportation officer, Anton was told that unless there was some intervention in his case that reversed this decision, he would face deportation by January.

In its decision, ICE said only that they denied the request because there was nothing “extraordinary” about their case. The Field Office Director did not explain how he arrived at this decision or why he would only grant deferred action to “extraordinary cases.” ICE did not explain why they were not applying the guidelines set forth on June 19 by ICE Director John Morton. ICE made no mention of the August 18 letter by Department of Homeland Security (DHS) Secretary Janet Napolitano announcing the administration’s intent to conduct a system-wide review to ensure that all low-priority deportation cases were set aside, and made no mention of the DHS clarification on that day that LGBT families are included in the guidelines.

Statement from Lavi Soloway, lawyer for Anton Tanumihardja & Brian Andersen, and founder of Stop The Deportations:

“We are shocked and disappointed that ICE has failed to implement the guidelines set forth by this administration. The Obama administration made a commitment to stop deportations that would tear apart families, including gay and lesbian couples, and yet in its decision the ICE office in Philadelphia is failing to make good on that commitment. The administration must take immediate action to ensure that the new deportation policy is being implemented fairly and consistently by ICE deportation officers in local offices, or this policy announcement is meaningless.”

Anton Tanumihardja satisfies numerous criteria set forth by the administration in its prosecutorial discretion guidelines: (1) he has strong ties to Philadelphia which has been his home for the past 9 years; (2) he is a hard working and respected member of his community; (3) ever since fleeing Indonesia, he has pursued a legal immigration process that was ultimately unsuccessful; (4) he is married to his U.S. citizen spouse, Brian Anderson, and has strong family relationships to his spouse and his spouse’s family; (5) he has no ties to Indonesia, a country he fled because of persecution due to his identity as a gay man, Christian and an ethnic Chinese person. The guidelines set forth by DHS also require ICE to consider conditions in the country to which one (i.e., Anton) would be deported. Anton cannot return to Indonesia and live safely; furthermore, there is no way that his husband, Brian, could move there, nor any way they could safely or legally live there as a legally married gay couple. All these conditions are laid out in the administration’s prosecutorial discretion guidelines. Despite meeting these conditions, and despite the administration’s recent confirmation that those guidelines would be applied to gay and lesbian couples, Anton now faces the reality of deportation by January.

Brian and Anton’s case is the first test of the administration’s commitment to stop deportations involving same-sex binational couples since the August 18 announcement by DHS Secretary Janet Napolitano. It is the first time that the spouse of a gay American, with a final removal order, has requested prosecutorial discretion under the new guidelines.

“The Obama administration’s new policy has failed to protect Anton and Brian from deportation. ICE’s determination to deport Anton regardless of the new guidelines demonstrates that the administration has not instructed ICE deportation officers on the implementation of the LGBT-inclusive prosecutorial discretion guidelines for an individual with a final order of removal,” said Lavi Soloway. “Today’s decision is a devastating setback for this couple, and should be of great concern to everyone, including the Obama administration, as they work to ensure that we have a fair and humane deportation policy.”

For more information on the campaign to help couples like Brian & Anton, please see www.StopTheDeportations.com.

Background of this case

Anton had previously exhausted all his appeals and recently received a final denial of his last appeal. Because Anton has a “final order of removal,” ICE has the power to put him on a plane and deport him at any time. The request for deferred action was his final hope for a halt to deportation.

Earlier this year, Brian and Anton faced the cruel coincidence of a deportation scheduled for Valentine’s Day. Anton, with his bags packed and his one-way plane ticket in hand, was prepared to follow ICE’s instructions: board a plane voluntarily on February 14 or be taken into custody and forcibly deported, even though he knew that by boarding that plane he would be separated from Brian for at least ten years. Stop The Deportations, the Gay and Lesbian Alliance Against Defamation (GLAAD) and other LGBT groups mounted an emergency advocacy with the support of U.S. Senator Robert Casey (D-PA) and Philadelphia Congressman Robert Brady (D-PA) to raise the profile of the case and persuade ICE to reconsider the case.

Just three hours before Anton’s flight to Jakarta was scheduled to take off, ICE finally agreed to postpone the deportation. Anton was put under an Order of Supervision and was not held in ICE custody. Officially, ICE allowed Anton to stay until a final decision was made by the Board of Immigration Appeals (BIA) on a Motion to Reopen that had been filed in 2010. That Motion was denied on May 31, 2011. A request this summer that DHS join a second Motion to Reopen the case failed when DHS declined to do so. The BIA can still re-open the case on its own decision, but it rarely does so.

On June 12, Brian and Anton married in Washington, D.C., in a ceremony across the street from the White House. Brian filed a green card petition for Anton and will continue to advocate tirelessly for his right to sponsor Anton to stay with him in this country as his spouse.