B. Immigration Innovation in Action
The following four case studies highlight a number of different contexts in which frontline officers have put their enforcement discretion to creative uses. On certain occasions, immigration bureaucrats solved an immigration-law problem or conundrum that higher-level administrative officials refused to address categorically. On others, the lower-level bureaucracy resisted top-down immigration policies that were greatly out of step with the agency's long-term interests and best practices. The case studies span (1) deportation relief for LGBT foreign nationals in relationships with U.S. citizens and LPRs, (2) the granting of parole in place for the immediate family members of U.S. citizen service members, (3) efforts to protect victims of gender-motivated persecution under domestic asylum law, and (4) bureaucratic resistance to policies that required automatic detention of foreign nationals ordered removed. Together, they highlight different ways that frontline discretion can constitute an important locus of subfederal policymaking, with tremendous potential for higher-level learning, innovation, and adaptation.
1. LGBT Immigrants in Binational Relationships. The first case study involves discrimination against gay and lesbian foreign nationals in relationships with U.S. citizens and LPRs, an issue that predates laws like the Defense of Marriage Act (DOMA), which, for years, refused federal recognition to valid same-sex marriages. (97) Long before the Supreme Court invalidated DOMA in United States v. Windsor (98) and upheld the constitutional right of same-sex couples to marry in Obergefell v. Hodges, (99) frontline officers within the various arms of the executive branch used their discretionary power to provide a reprieve to same-sex couples who faced separation because the law prevented them from seeking family-based immigration benefits. Although there was no basis for the foreign national to obtain immigrant status, exercises of discretion on the ground allowed families to remain together within the United States. (100) These favorable exercises of discretion occurred one at a time, without any guidance from higher-ups; eventually, after a groundswell of similar, case-by-case decisions by ground-level officers across DHS and DOJ, the Obama administration took across-the-board action by directing favorable exercises of discretion in all similarly situated cases involving binational same-sex couples.
The first reported case of a binational same-sex couple involved Richard Adams, a U.S. citizen, and Anthony Sullivan, a citizen of Australia, who secured a marriage license in 1975 from a County Clerk in Boulder, Colorado. (101) Marriage license in hand, Adams sponsored Sullivan for permanent residency as his "immediate relative" so that Sullivan could apply to adjust his status to that of an LPR. (102) Legacy INS denied the petition because the couple "failed to establish that a bona fide marital relationship can exist between two faggots." (103) The Ninth Circuit upheld that decision in 1982. (104)
Adams and Sullivan's treatment by legacy INS is one in a long history of especially unkind and humiliating experiences suffered by LGBT immigrants and binational couples, which included a longtime ban on gay and lesbian entrants. (105) The elimination of that ban in 1990 did not improve the lot of many same-sex binational couples, who continued...