Discretionary relief from deportation for same-sex partners.
Responding to a request from over eighty members of Congress, Department of Homeland Security (DHS) Secretary Janet Napolitano sent a letter to Representative Jerrold Nadler late last week promising written guidance on discretionary relief from deportation for same-sex partners of U.S. citizens.
The Secretary’s letter and forthcoming guidance build on a 2011 memorandum from John Morton, Director of Immigration and Customs Enforcement (ICE), stating that ICE personnel are to consider an individual’s family ties to the United States when exercising discretion over enforcement decisions. Individuals with family relationships in the U.S. are to be considered “low priority” for removal. Secretary Napolitano’s letter now clarifies that “family relationships” includes long-term, same-sex partners.
The Secretary’s announcement and the memorandum are part of a broader strategy within the Obama administration to focus DHS resources on high-priority cases, including removal of convicted criminals, by shifting the agency’s focus away from potentially low-priority cases. In exercising their prosecutorial discretion, ICE officials may defer issuing to individuals in a low-priority category a “Notice to Appear,” which is the first step in removal proceedings that often lead to deportation.
Congressional leaders and community advocates have encouraged the Obama administration to articulate its policy on same-sex couples in immigration proceedings, particularly in light of the administration’s announcement that it would stop defending the constitutionality of the Defense of Marriage Act (DOMA) in legal challenges, although the administration has continued to enforce the provisions of DOMA. Currently, opposite sex spouses of a U.S. citizen are eligible to apply for a green card, but DOMA prevents same-sex spouses and partners from doing the same.