New guidance from the Department of Homeland Security stipulating that gay and lesbian bi-national couples are families spells out three criteria for immigration officials who are determining whether to exercise prosecutorial discretion in potential deportation cases.
The memorandum from U.S. Immigration & Customs Enforcement was long sought by LGBT advocates and lawmakers seeking greater protection for bi-national same-sex couples, who may be faced with separation under the nation’s current immigration code if the immigrant in the relationship doesn’t have legal status in the United States.
It was obtained exclusively Tuesday by the Washington Blade and can be downloaded here.
The guidance offers three criteria for immigration personnel as they determine whether a same-sex relationship would “rise to the level of a ‘family relationship’”:
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Same-sex relationships that rise to the level of “family relationships” are long-term, same-sex relationships in which the individuals
- are each other’s sole domestic partner and intend to remain so indefinitely;
- are not in a marital or other domestic relationship with anyone else; and typically maintain a common residence
- and share financial obligations and assets.
Notably, the guidance doesn’t mandate that the couples be in a legal same-sex marriage as it lays out criteria for when they would be eligible for prosecutorial discretion.
ICE maintains that being in a family relationship is one factor that immigration officials should consider when determining whether to exercise prosecutorial discretion and other issues may trump familial status.
“Officers, agents and attorneys must consider the totality of circumstances presented in an individual case,” the guidance states. “Family relationships may be outweighed by criminal history, prior immigration violations, or other indicia that an individual meets ICE enforcement priorities.”
The guidance is dated Oct. 5 and signed by three senior officials within ICE: Executive Associate Director Gary Mead, Executive Associate Director James Dinkins and Principal Legal Director Peter Vincent. According to the heading, it was distributed to ICE field office directors, chief counsel and special agents.
