DHS Grants Same-Sex Couples a Reprieve

US immigration allows US citizens, who are ‘married’ to citizens of other countries, to apply for permanent residency based on marriage. In other words, the foreign spouse can qualify for permanent residency based on their marital relationship with the US citizen. The US government is now seeking to expand the scope of the marital relationship to include same-sex couples in long-term relationships.

To achieve this, in June 2011 the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) issued a policy called, “Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”, or the Prosecutorial Discretion Memorandum. This policy outlined the guidelines that enforcement officers are to follow when finding and removing illegal aliens from the US. This memo was issued to explain the position that DHS and ICE would take on treatment of young immigrants who are in long-term, same-sex relationships with American citizens.

In a written statement in September, DHS further clarified the Prosecutorial Discretion Memorandum by specifically stating that young immigrants, with American same-sex partners, will remain eligible for deferral, which means that no action would be taken to remove foreign-born, same-sex couples from the US.

Prosecutorial Discretion Policy

Prosecutorial discretion is the act of an agency or officer deciding how to bring charges upon a person and how to handle a case.

When deciding how to pursue a case, enforcement officers follow the guidelines of the Prosecutorial Discretion Memorandum. As the guidelines state, officers must asses an individual’s “ties and contributions to the community, including family relationships.” As it was made clear by DHS Secretary Janet Napolitano this September 2012, these ‘family relationships’ also include “committed, long-term, same-sex partners.” Instead of centering efforts on cases that do not pose a threat to US security, the Obama administration is focusing enforcement resources on deporting immigrants who are potential risks to public safety and national security.

Policy Ambiguities

Though guidelines for same-sex couples were outlined in the Prosecutorial Discretion Memorandum, many thought the memo was vague. In July, over 80 Democrats from the House of Representatives wrote to Secretary Napolitano, “it would be beyond senseless to see L.G.B.T. persons with family ties here in the United States deported” because officers might be uninformed about the guidelines on gay partners (NYT, “Same-Sex Couples Granted Protection in Deportations”, 28 Sept 2012).

Thousands of deportation cases have been closed since DHS’s clarification. While immigrants-in-question can remain in the US, they still will not be granted legal status.

DHS’s clarification does not affect the issue of gay immigrants, who are married to American citizens, being able to acquire permanent resident visas. According to current law, same-sex immigrant spouses are not eligible for green cards and can be deported.

DHS may not deport same-sex couples, and will give these couples reprieve. However, deferral is not a path for citizenship. We will wait until November to see if these policies will be continued.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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