DHS clarifies immigration policy to protect binational same-sex couples from deportation

On Friday, Department of Homeland Security Secretary Janet Napolitano announced that the DHS will issue new, written guidance for U.S. immigration officers to ensure that discretionary relief is extended to immigrants in same-sex partnerships or marriages with U.S. citizens. This means that foreign citizens who are same-sex partners with U.S. citizens will be included in a policy that suspends deportations for immigrants who don't pose any security risk to the country. The guidelines mark one of the first times that same-sex couples will be recognized by U.S. immigration policies

The news came in the form of a letter from Sec. Napolitano, who was responding to an August letter from House Democratic Leader Nancy Pelosi and 83 other members of Congress urging the DHS to clarify in writing how same-sex couples should be viewed by the Immigration & Customs Enforcement officials. Napolitano's letter reads:

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. 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.  

Binational same-sex couples - where one partner is a foreign citizen (like Gemma and Jessica, pictured) - have long encountered immigration challenges in the United States because the so-called Defense of Marriage Act prohibits the federal government from recognizing marriages or unions between same-sex couples, meaning that the U.S. citizen cannot sponsor their foreign partner to remain in the country.

The formal announcement that same-sex couples will be included in the discretionary relief policies comes just over a year after President Obama and the DHS declared that their efforts to enforce immigration laws would begin viewing LGBT relationships as a "family relationship." In that declaration, the administration said they intended to place a lower priority on immigration cases involving binational same-sex couples. We applaud the administration for delineating the policy in writing so that there is no question about how cases involving binational same-sex couples should be handled. 

Immigration Equality, which has been working toward a formal movement on this policy, also applauded the administration's decision. In a press release, Immigration Equality Executive Director Rachel B. Tiven said:

This is a huge step forward. 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. The Administration's written guidance will help families facing separation and the field officers who are reviewing their cases.

Freedom to Marry applauds this step forward toward the complete protection of binational same-sex couples and their families. But it is important to note that the announcement does not resolve many of the problems that DOMA causes binational same-sex couples. American citizens still will not be allowed to sponsor their same-sex partner for permanent resident visas, although American citizens in different-sex relationships are eligible to do so. 

As long as DOMA stands, same-sex couples will continue seeing their relationships placed in a lesser class from relationships between different-sex couples. Same-sex couples and their marriages will continue to face discrimination, and their families will continue being deprived of over 1,000 protections and responsibilities that different-sex couples receive. 

Learn more about DOMA here, and read stories illustrating how DOMA hurts same-sex couples.