Same-Sex Family Units Recognized

Contributed by Bryon Large

By now, most practitioners and immigration advocates are aware of the June 15, 2011 Morton Memoranda regarding the exercise of prosecutorial discretion to persons in removal proceedings in accordance with ICE’s removal priorities.  While there were was vague language regarding family relationships in ICE’s guidance, and while assurances were made that same-sex couples would be recognized in the guidance, no official word came from the Department or ICE in writing.  Advocates for LGBT immigration issues received assurances that the vague language did not require a couple to be married, nor even of opposite sex, when ICE was evaluating a case for prosecutorial discretion.  However, in practice application of the Morton Prosecutorial Discretion Memos was inconsistent throughout the country.  While leadership in Washington seemed to envision inclusion of all couples, regardless of marital status or sexual orientation, the boots on the ground seemed to be looking more for a marriage certificate.

 

On Thursday, September 27, 2012, Secretary Napolitano answered a letter from some Members of Congress requesting clarification on the issue.  Specifically, in her response, Secretary Napolitano clarified that the term “familial relationships” specifically would include long-term, same-sex partners.  She also specified that she has directed ICE to disseminate written guidance to the field clarifying the issue.  Advocates expect ICE guidance in the very near future on this issue.

 

Given the DOMA litigation, the pending Uniting American Families Act which would recognize same-sex relationships for immigration purposes, and the wave of marriage recognition across the country, this forthcoming guidance from ICE at the Secretary’s direction is a large advance for the LGBT community in immigration issues.

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