By Chris Johnson
The Obama administration unveiled on Thursday 18 August new immigration policy that could enable many undocumented immigrants facing deportation to stay within the United States — a move that could enable bi-national same-sex couples at the risk of separation to stay together within the country.
Under the new guidance, immigration authorities within the Obama administration will conduct a case-by-case review of the approximately 300,000 undocumented immigrants facing possible deportation to determine which cases are high priority and low priority. Those who have been convicted of crimes or pose a security risk will be a higher priority for deportation, while those who are deemed lower priority will be taken out of the pipeline.
Administration officials will weigh a person’s ties and contributions to the community and family relationships. During an on background conference call with media outlets on Thursday, a senior administration official, speaking on condition of anonymity, said these criteria are inclusive of LGBT families and same-sex couples.
“The prosecutorial discretion memo provides for the use of discretion for people with strong community ties, with community contributions and with family relationships,” the official said. “We consider LGBT families to be families in this context.”Under current immigration code, straight Americans can sponsor their spouses for residency in the United States through the green card application process if their spouses are foreign nationals. The same rights aren’t available to gay Americans because same-sex marriage isn’t legal in many places in the country and because the Defense of Marriage Act prohibits federal recognition of these unions.
Consequently, foreign nationals who are in committed relationships with gay Americans may have to leave the United States or face deportation — which could mean separation from their partner — if these foreign nationals are discovered to be undocumented or upon expiration of their temporary visas. The new policy guidance offers another opportunity for the Obama administration to cancel the deportation of these foreign nationals, enabling them to remain in the country with their partners.
Steve Ralls, a spokesperson for Immigration Equality, said the new change seems like “good news” for bi-national same-sex couples who are facing imminent separation via a deportation or removal order.
“While Immigration Equality has not yet seen the written guidelines that will accompany the changes the agency has announced, our understanding is that the guidance is meant to be LGBT-inclusive,” Ralls said.But Ralls said further action is needed because the new guidance doesn’t affect bi-national couples who need relief, but haven’t received a deportation order or removal notice. LGBT immigration organizations have been calling on the Obama administration is issue a blanket moratorium on DOMA-related deportations to ensure that married bi-national couples can stay together in the United States.
“Those couples are still waiting for an answer as to how the administration will ensure they remain in the country and are given the same treatment and solutions, under the law, available to straight couples, too,” Ralls said.The new policy is in response to a letter that Assistant Senate Majority Leader Dick Durbin (D-Ill.) as part of a group of 20 Democratic senators wrote in April asking President Obama to set up a process to stop the deportation of people who would qualify for citizenship under the DREAM Act. The DREAM Act, or Development, Relief and Education for Alien Minors Act, would allow young, undocumented immigrants a path to citizenship if they pursue a college education or military service.
Additionally, the new change builds off an existing June 17 memo enabling immigration officials to exercise discretion in deportation cases that aren’t deemed high priority. Groups had been seeking to expand the memo to include explicit mention of bi-national same-sex couples.
Lavi Soloway, founder of Stop the Deportations, said the policy unveiled on Thursday takes further this previous guidance directed to U.S. Immigration and Customs Enforcement agents and moves the administration “one step closer” to enacting a uniform policy to end deportations of gay foreign nationals living in the United States.
“It puts the full power of the administration behind the enforcement of prosecutorial discretion rather than simply allowing each ICE attorney or deportation officer to decide whether and how that discretion should be exercised,” Soloway said.
“By undertaking a review of all pending deportation cases at the highest level and clarifying that existing prosecutorial discretion guidelines include LGBT families, Secretary [of Homeland Security Janet] Napolitano will now have the opportunity to stop every deportation involving a lesbian or gay binational couple.”