U.S. Department of Homeland Security Secretary Janet Napolitano recently announced a major, formal change to United States immigration policy with respect to same-sex couples who have been in a committed relationship for a period of time. Such relationships will be considered “family relationships” for deportation purposes, which means they will be taken into account when U.S. immigration officials are deciding whether to pursue deportation of an individual. Persons in a heterosexual marriage have since 2011 received the benefit of their marital status weighing in their favor in the decision-making process undertaken by U.S. Immigration and Customs Enforcement (ICE). The formal change, to be outlined in a policy memorandum in the near future, makes it less likely that a person in a same-sex relationship will be targeted by the U.S. government for deportation than was previously the case. Crucially, however, the shift in U.S. immigration policy does not mean that same-sex couples will get the same benefits as heterosexual married couples when it comes to other immigration benefits, such as the ability to get a green card through one’s spouse.
Prosecutorial Discretion – Same-Sex Relationships to Enter the Mix
This major immigration policy change affects the way ICE agents and other personnel will go about selecting targets for deportation (often referred to as deportation and removal – those two terms are used synonymously) from the United States. The option of whether to try to deport someone in U.S. immigration court is referred to as prosecutorial discretion; the idea is that ICE, given its limited resources, should exercise sound discretion in deciding whom to target for deportation. It does not have to try to deport everyone who could possibly be deported. It simply does not have the manpower or other resources to seek the deportation of every single person who is eligible for removal from the United States. ICE must therefore choose carefully whom it will try to deport.
President Obama has made clear that people who pose a threat to the public – like people with a criminal record, especially where the crime involved violence – should be highest on the priority list. In 2011, the U.S. immigration authorities produced a memorandum highlighting for ICE personnel the types of deportation cases they should pursue and the types for which they should exercise prosecutorial discretion (i.e., the ones that should not be prosecuted for deportation in immigration court).
The memorandum listed things like not having a criminal record, having come to the U.S. at an early age, having established deep roots and significant ties in the community, having gone to school in the United States, and having family relationships in the U.S. as boding in favor of an exercise of prosecutorial discretion. This means that where many of those factors are present, US immigration authorities should decide not to pursue deportation against the person at issue. The immigration authorities stated verbally that they would consider same-sex couples within the definition of “family relationships” for purposes of exercises of prosecutorial discretion, but many people, including lawmakers in Congress, did not believe that the immigration authorities were in fact doing this in practice. The announcement by Napolitano means that this policy of treating same-sex relationships as a positive factor in the prosecutorial discretion analysis will be put, for the first time, in writing.
It is not yet clear how long a same-sex couple must have been in a relationship to have this be considered a positive factor where possible deportation is at issue. It stands to reason, though, that the longer the relationship the better for purposes of avoiding prosecution for deportation. It is worth stating again that this change will not help same-sex couples get other US immigration law benefits, such as permanent residency through a green card.
Brad Menzer is blogger for the law firm Heartland Immigration. The firm defends clients against deportation all over the United States, and serves individuals and businesses from around the globe in the full range of US immigration law matters. To learn more about Heartland Immigration, please click here.