Prosecutorial Discretion For Same-Sex Couples In Immigration Cases


Posted on October 11th, 2012, by Susannah Nichols in Immigration Law. Comments Off

While many states recognize same-sex marriage and partnerships, these relationships have not been considered in the context of U.S. immigration laws. The Defense of Marriage Act (DOMA), passed in 1996, has prevented any Federal recognition of same-sex marriages for immigration purposes. DOMA defines marriage as an institution specifically between a man and a woman. This prevents many immigrants from obtaining benefits through their same-sex spouses which would otherwise be available if they were married to members of the opposite sex. For years, many have fought to prevent same-sex marriage families from being separated due to the immigration system’s failure to recognize their relationships. A recent announcement by U.S. Immigration and Customs Enforcement (ICE) regarding prosecutorial discretion has given those people reason to celebrate.

By a written memorandum on June 17, 2011, ICE Director John Morton set forth the ICE policy on the exercise of “prosecutorial discretion,” which refers to the ability of certain ICE personnel to dismiss, suspend or close particular immigration enforcement cases. The memo launched an effort to conserve immigration resources for more dangerous offenders through the use of prosecutorial discretion. It outlined factors which are to be used in prioritizing cases, giving lower priority to cases with minimal criminal history, those who have lengthy stays in the United States, minimal violations of immigration laws, strong community ties, and strong family relationships in the United States.

Later in 2011, the Department of Homeland Security (DHS) announced that it was implementing the Morton memo. At that time, a senior Obama Administration official orally acknowledged that the new prosecutorial discretion policy would include same sex-couples when considering family relationships.

In other words, the June 2011 prosecutorial discretion memo provided in writing for the use of discretion for people with family relationships, and the Administration clarified orally that these family relationships would include same-sex couples. As this would be the first Federal recognition of same-sex partnerships, Congress, along with others, pushed for written specifics which could be used by both adjudicators and those seeking prosecutorial discretion for members of same-sex couples. 

Responding to those concerns, DHS Secretary Janet Napolitano issued a letter on September 26, 2012, stating that same-sex couples will in fact be considered in the definition of “family relationships” for purposes of prosecutorial discretion. This letter directed ICE to clarify its inclusion of same-sex partnerships through a written definition.

Following Secretary Napolitano’s letter, ICE issued a memorandum on October 5, 2012 clarifying “family relationships” to include “long-term same-sex partners.” This memo defines same-sex relationships which qualify as family relationships for purposes of prosecutorial discretion as those in which the individuals: (1) are each other’s sole domestic partner and intend to remain so indefinitely; (2) are not in a marital or other domestic relationship with anyone else; and (3) typically maintain a common residence and share financial obligations and assets. 

The definition of family relationships set forth in the October 2012 memorandum also makes clear that a legal marriage is not necessary for the relationship to be considered.

Thus, same-sex partners are now clearly eligible for the exercise of prosecutorial discretion as set forth in the June 2011 “Morton memo.” There are an estimated 36,000 binational gay couples in the United States. These new immigration policies can allow some of these families which would have been separated to stay intact.

This is a huge victory for the lesbian, gay, bisexual and transgender (LGBT) community, despite its limited context to prosecutorial discretion in immigration enforcement cases. However, same-sex couples are still not viewed as fully equivalent to spouses in the immigration context. They are prevented from benefiting from certain employment and family immigration benefits reserved for family status.

While the application of the ICE prosecutorial discretion policy to same-sex couples does not come close to creating equal benefits for same-sex spouses, it is still a notable step. Most importantly, the new policy will allow many same-sex families to stay intact, by allowing their relationships to be considered for prosecutorial discretion. But also, by defining family relationships in this context to include long-term same-sex partners, the government has perhaps opened the door to arguments for broader immigration benefits for same-sex couples in other areas where discretionary relief is applicable.

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About 

Susannah Nichols is an immigration attorney at Livesay & Myers, P.C. Her practice covers family-based and employment-based green cards, temporary visas, and citizenship. Ms. Nichols has a special focus on deportation cases, and has written extensively on the available forms of relief from deportation, including cancellation of removal and asylum.



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