Napolitano to Issue Written LGBT Immigration Protections

In a September 27 letter to more than 80 members of Congress, Homeland Security (DHS) Secretary Janet Napolitano announced she has instructed Immigration and Customs Enforcement (ICE) to disseminate written guidance to field officers making clear that “long-term, same-sex couples” are considered to be in a “family relationship” when officials consider applying what is known as “prosecutorial discretion” in pending deportation cases.

The letter, a response to a July 31 inquiry from dozens of House Democrats, comes more than 13 months after DHS indicated in a press call that they would do precisely that. In August 2011, Napolitano informed Senate Majority Leader Harry Reid by letter that the Obama administration would no longer pursue deportation proceedings unless an immigrant is identified as a security threat, a convicted criminal, or a repeat immigration law violator.

In a telephone conference call at that time, a senior administration official said the focus on such “high-priority” categories represented the latest in the government’s efforts to “unclog” a deportation system with 300,000 cases pending.

As part of the process for evaluating individual cases, some would be identified as “very low priority,” that official explained, including law-abiding immigrants with strong community or family ties. Asked specifically whether the term family ties included relationships between same-sex partners, the official responded yes.

Neither that assurance nor the new guarantee of a written guidance, however, is a substitute for immigration reform to allow sex-sex partners to seek permanent residence. In the August 2011 press call, the administration official emphasized that cases given a low priority “will not be taken out of the system, but those cases will be set aside.”

Still, advocates for LGBT immigrants and their American partners reacted with praise for the new DHS posture.

“This is a huge step forward,” said Rachel B. Tiven, executive director of Immigration Equality. “Until now, LGBT families and their lawyers had nothing to rely on but an oral promise that prosecutorial discretion would include all families. Today, DHS has responded to Congress and made that promise real. The administration’s written guidance will help families facing separation and the field officers who are reviewing their cases.”

“This is incredible news for the 36,000 bi-national same-sex couples in the US –– nearly half of whom are raising children,” said Jennifer Chrisler, executive director of the Family Equality Council. “Too often, our nation treats non-citizen same-sex partners and their spouses as legal strangers to one another. No parent in our country should be forced to make the heart-wrenching choice of whether to leave their spouse and children behind or whether to uproot their children from their schools, friends, community, and extended families to settle in another country with more welcoming immigration laws.”

In a written statement, West Side Democratic Congressman Jerrold Nadler, who had been among those who signed the July 31 letter to Napolitano, said, “I am thrilled that the Obama administration has taken to heart my concern about the need to explicitly protect LGBT immigrant families from being torn apart by needless and unwarranted immigration enforcement actions. I thank Secretary Napolitano for listening and supporting a policy that protects all American families, both straight and LGBT.”