DHS Moves Toward Accepting Same-Sex Relationships In the Immigration Context

BY PAULINA VALANTY — The Department of Homeland Security announced last fall that it would start considering same-sex partners as family for removal purposes. DHS Secretary Janet Napolitano announced the policy shift in a letter, stating that DHS will issue guidelines to its field officers clarifying the term “family relationships” to include “long-term, same-sex partners” when determining the removal priority of a person in deportation proceedings.

The Napolitano letter comes as part of a broader policy shift toward less-draconian deportation proceedings. In recent years, DHS has been trying to create an enforcement priority system that would allow immigration enforcement agencies to use their limited resources more efficiently. Currently, Immigration and Customs Enforcement and Customs and Border Protection combined have capacity to remove only 400,000 undocumented immigrants each year, less than 4 percent of the estimated 11 million undocumented immigrants in the United States.  With this limitation in mind, in 2011 DHS issued an internal memo detailing an enforcement priority system focused on “serious felons, repeat offenders” and “individuals who pose a clear risk to national security.”

The 2011 memo also recommends that when deciding whether to exercise prosecutorial discretion in favor of a person without authorization to be in the United States, agents should consider “the person’s ties and contributions to the community, including family relationships.”   This is the language that has been clarified to include “long-term, same-sex partners” by the new field guidelines. Although far from recognizing same-sex marriages for the purposes of obtaining immigration benefits, this new policy shows a changing trend with regards to the controversial issue of same-sex marriage, and not just immigration. LGBT groups have hailed the new policy for providing relief from deportation to spouses and long-term domestic partners of United States citizens or residents. Immigration Equality has considered this new police “a huge step forward.”

This new consideration of same-sex couples comes within a year of the Obama Administration’s announcement that it would no longer defend the Defense of Marriage Act (DOMA) in federal courts. With the Supreme Court mulling the Constitutionality of DOMA this term, the Obama Administration is further emphasizing its historic commitment towards marriage equality by issuing these guidelines. Napolitano concluded the letter with “[n]ow the courts and Congress should act to make relief permanent, and provide access to green cards for all LGBT families.”

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