Prosecutorial Discretion for Same-Sex Couples Now Recognized By Immigration Officials

1392509_rainbow_flag.jpgHomosexual couples are now considered by immigration officials to be “family relationships” according to Homeland Security Secretary Janet Napolitano, who issued the order to federal agencies. She said in a letter to U.S. House Representative Jerrold Nadler dated September 27, 2012, that she has directed the U.S. Immigration and Customs Enforcement agency (ICE) to exercise prosecutorial discretion with respect to lesbian, gay, bisexual, and transgender (LGBT) individuals. Napolitano’s letter also says that family relationships are to be interpreted by homeland security to include “long-term same-sex partners.”

Such prosecutorial discretion is used by ICE to determine whether an undocumented foreign national in removal proceedings merits special consideration and should be allowed to stay in the United States based upon several factors, one of which is whether an individual has close family ties to the United States.

Therefore, an undocumented immigrant can get protection from deportation if he or she has a same-sex relationship with a United States citizen, just like the protection the Obama administration has granted foreign nationals in traditional relationships with U.S. citizens.

Napolitano’s new policy comes after several Democrat lawmakers including Rep. Nancy Pelosi complained that ICE’s “Morton Memo” issued last year that ended most deportation, did not also protect homosexual undocumented foreign nationals from deportation.

Napolitano’s order seems to be in conflict with the Defense of Marriage Act (DOMA), which prohibits same-sex marriages from being recognized by the government. However, Barack Obama said early into his presidency that his administration would not enforce DOMA.

Click here to see Janet Napolitano’s September 27, 2012 letter to Rep. Nadler