First Time DHS Has Explicitly Spelled out Policy to Immigration Officers

The Department of Homeland Security plans to instruct in writing to its field offices next week that illegal immigrants with long-term same-sex spouses or partners are eligible for consideration under a federal program designed to focus resources away from low-priority cases. GLBT couples will have their deportations put on hold.

Extends Discretionary Relief to LGBT Immigrants with U.S. Citizen Spouses & Partners

Although the administration had formerly told reporters that same-sex relationships will be taken into account when making deportation decisions, on September 27, 2012, Department of Homeland Security Janet Napolitano put it in writing to make clear the definition of the phrase ‘family relationships.’ In the letter, Napolitano directed ICE (Immigrant and Customs Enforcement) U.S. offices to “disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners.” As with every other factor identified in ICE’s Director John Morton’s June 11 memorandum, the applicability of the ‘family relationships’ factor is weighed on an individualized basis in the consideration of whether the immigrant is high-priority for deportation. Government attorneys weigh factors such as a person’s criminal record, family ties and community relations in making their decisions.

ICE Should Consider “The Totality of Circumstances” Outlined in 2011 Memo

When making enforcement decisions in immigration law, the new directive informs ICE personnel that they should consider “ties and contributions to the community,” military service, undocumented immigrant’s age, and cooperation with authorities.

Led by Minority Leader Nancy Pelosi (D-California), Rep. Mike Honda (D-Ca.) and Rep. Jerry Nadler (D-N.Y.), more than 80 House Democrats called in late July for the Department of Homeland Security to add a specific mention of same-sex couples to its guidelines. Rep. Honda said in a statement on September 28^th that” he will continue to push for immigration reform legislation such as his Reuniting American Families Act, which would allow Americans to petition for legal status for their same-sex couples, as heterosexual couples can.”

What New Guidance Does Not Mean

The instructions do not mean that foreigners who are married to Americans of the same sex will be eligible for green cards or citizenships, as are immigrants with heterosexual spouses. The DOMA (Defense of Marriage Act ) Law of 1996 prohibits the government from recognizing same-sex marriages, even as it opposes it in court and takes gay relationships into account when evaluating deportation cases. The decision to grant reprieves still would be considered on a case-by-case basis.

Whose at Stake

The Williams Institute in California estimates that as of 2010 there were about 29,000 same-sex couples in U.S. comprised of a U.S. citizen and a non-U.S. citizen.

“Until now, LGBT families and their lawyers had nothing to rely on but an oral promise that prosecutorial discretion would include all families,” stated Rachel B. Tiven, Executive Director of Immigration Equality, a gay rights and reform group. “This is a huge step forward. The administration’s guidance will help families facing separation and the field officers who are reviewing their cases.”