HRC Blog

DHS Now Including Same-Sex Couples within the Definition of “Family” for Prosecutorial Discretion

Last month, the Department of Homeland Security (DHS) Secretary Janet Napolitano announced that she had instructed Immigration and Customs Enforcement (ICE) field offices to include same-sex families explicitly under prosecutorial discretion decisions by ICE. The new written guidance issued last week provides explicit guidelines for ICE field offices and gives bi-national, same-sex couples in this situation much needed clarity.

The new guidance states that:

Same-sex relationships that rise to the level of “family relationships” are long-term, same-sex relationships in which the individuals -

  • are each other’s sole domestic partner and intend to remain so indefinitely;
  • are not in a marital or other domestic relationship with anyone else; and
  • typically maintain a common residence and share financial obligations and assets.

As of June 2011, same-sex, bi-national couples were to be considered for prosecutorial discretion, ensuring that they were “low priority” for removal.  However, this decision was not explicitly in writing to ICE field offices. HRC and other groups were concerned that the lack of guidance would result in some field offices failing to consistently follow the ICE’s stated policy. HRC hopes that the new guidance will provide relief for many bi-national, same-sex families who were caught in limbo in the deportation process. 

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