New Guidelines on Deportation Cases Could Apply to Gay Couples

Immigration officials may be able to consider the circumstances of married binational same-sex couples when making decisions about deportation, although an immigration group in response has asked for further clarification of new federal guidelines.
According to guidelines issued in a Friday memo by U.S. Immigration and Customs Enforcement director John Morton to field directors, agents, and attorneys, Morton listed 19 criteria that could be considered in deportation cases, including whether an individual has a U.S. citizen spouse, as well as "the person's ties and contributions to the community" and whether the individual's nationality "renders removal unlikely."

Morton specified that the list "is not exhaustive." In response, an LGBT immigration advocacy group has asked the agency to clarify whether terms like "spouse" and "family" in the memo include gay partners and spouses.

"While ICE has taken a significant step in recognizing that tearing families apart should not be a government priority, it must be explicit that lesbian and gay families are protected, too," Immigration Equality executive director Rachel Tiven said in a statement today.

Following the Obama administration's February announcement that it would no longer defend the Defense of Marriage Act in federal court cases, Tiven's organization and other advocates have called on officials to exercise their discretion in immigration cases involving married gay binational couples because President Barack Obama has said the 1996 law, which prevents federal recognition of same-sex marriages, is unconstitutional.

In some recent, well-publicized cases, officials have perhaps indicated their willingness to exercise such discretion, though the administration has so far said it will not issue a blanket policy on the matter.

"Neither [the Department of Homeland Security] nor [the Department of Justice] has granted any form of relief to the entire category of cases affected by DOMA," wrote DHS assistant secretary Nelson Peacock and Assistant Attorney General Ronald Reich in a May letter to Sen. John Kerry, D-Mass., and Rep. Zoe Lofgren, D-Calif., replying to correspondence this spring from the two lawmakers.

Kerry and Lofgren, backed by dozens of colleagues in the House and Senate, had urged restraint in deportation proceedings involving married same-sex couples and asked that any green card application proceedings be put on hold pending legal resolution or legislative repeal of DOMA.

Lavi Soloway, an LGBT immigration attorney and cofounder of Stop the Deportations, said the ICE memo "offers abundant discretion for Immigration and Customs Enforcement attorneys handling deportation matters to consider the circumstances of lesbian and gay binational couples. There are at least three provisions that will prove to be very important for LGBT deportation cases: consideration of the person's ties to the country of origin and conditions there; consideration of the person's ties to the community, including family relationships; and consideration of whether the person has a spouse, parent or child who is a U.S. citizen or green card holder."

"Stop the Deportations will urge that these guidelines be applied fairly and compassionately to the spouses of lesbian and gay Americans facing deportation," Soloway said.