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.