Immigration Agents Will Consider Same-Sex Partnerships in Deportation and Prosecutorial Discretion Cases

The federal government will formally instruct immigration agents to consider same-sex relationships the same way as heterosexual relationships in deciding whether a person should be deported.

The announcement by Department of Homeland Security Secretary Janet Napolitano comes as welcome news to some Democrats in Congress, including House Minority Leader Nancy Pelosi (Calif.), who had voiced concerns already that informal instructions to do so could be ignored by immigration agents.

Napolitano said on Thursday she would issue the instruction in writing to immigration agents. The administration had only informally indicated same-sex relationships would be taken into account when making deportation decisions.

“This is a huge step forward,” Rachel B. Tiven, director of pro-gay rights group Immigration Equality, said in a statement. “Until now, LGBT families and their lawyers had nothing to rely on but an oral promise that prosecutorial discretion would include all families. Today, DHS has responded to Congress and made that promise real.”
DHS released guidelines last year instructing agents to consider multiple factors — including the age at which the person came to the U.S. and their family relationships — when deciding whether the immigrant should be deported. The prosecutorial discretion to which Tiven refers allows agents to prioritize some deportation cases over others, specifically those involving repeat offenders and violent criminals.

Pelosi had previously called on DHS to specifically mention same-sex couples in the guidelines. Napolitano responded that official guidance would be in U.S. Immigration and Customs Enforcement offices by next week.

“In an effort to make clear the definition of the phrase ‘family relationships,’ I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners,” Napolitano wrote in the letter. “As with every other factor identified in Director Morton’s June 11 memorandum, the applicability of the ‘family relationships’ factor is weighed on an individualized basis in the consideration of whether prosecutorial discretion is appropriate in a given case.”
This written directive from ICE Director Napolitano is just the right step towards focusing immigration enforcement on the more serious offenders. It will remain to be seen on an individual case by case basis how well the implementation of the directive turns out. Any reports of same-sex partners being deported despite this policy will certainly cause greater scrutiny on what is being carried out by ICE.