ICE Extending Definition of “Family Relationship” to Certain Same-Sex Couples for Prosecutorial Discretion Cases

In June 2011, the Obama administration identified its top immigration enforcement priorities: individuals who pose a threat to public safety, recent border crossers, or repeat violators of immigration law. The administration specifically empowered Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion (or withholding of prosecution for removal) in cases where the undocumented immigrant does not fall within those priorities. Under prosecutorial discretion, undocumented immigrants with no criminal convictions and “ties and contributions to the community, including those with family relationships” would not be deported. Last week, Secretary of the Department of Homeland Security, Janet Napolitano, ordered ICE to consider long-term, same sex relationships as a “family relationship” for purposes of determining whether prosecutorial discretion should be exercised for und ocumented immigrants.

Prior to Secretary Napolitano’s order, it was unclear exactly how same-sex couples should be considered. Additionally, under the Defense of Marriage Act (DOMA), same-sex couples are prohibited from obtaining other immigration benefits such as filing marriage-based green card petitions, and there was confusion as to whether this prohibition extended to the exercise of prosecutorial discretion. Under Napolitano’s order, ICE officials will consider same-sex relationships as having risen to the level of “family relationships” if they: (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.

Of course, the “family relationships” factor is only one of many factors that ICE will consider (on a case-by-case basis) to determine whether prosecutorial discretion is appropriate. ICE officials also must consider whether the applicant has a criminal history, prior immigration violations or meets any of the other ICE enforcement priorities.

Although this policy only affects the determination of prosecutorial discretion, gay rights groups applaud Secretary Napolitano’s order and view it as a step in the right direction with regard to consideration of same-sex couples for other types of immigration benefits.

Further news articles on same sex couples and immigration:

http://www.huffingtonpost.com/2012/09/28/same-sex-immigration-reform_n_1924763.html

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