New ICE Memo: Family Relationships Include Same Sex Couples

Posted on 11/05/13

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New ICE Memo: Family Relationships Include Same Sex Couples

By James A. Welcome

Since June 2011, Immigration and Customs Enforcement has operated under the directive to focus enforcement and agency resources (money and agents) on enforcement priorities. This policy has become known in immigration circles as “prosecutorial discretion.” The directive was issued through an agency-wide memorandum from ICE Director John Morton. It directed ICE to focus its attention on certain undocumented individuals in the United States instead of continuing the years-long process of random chance immigration enforcement. The memorandum defined enforcement priorities as “individuals who pose a threat to public safety,” including those with criminal convictions, individuals who are “recent border crossers,” or those who repeatedly violate the nation’s immigration laws.

The June 2011 memorandum outlined a number of factors that immigration enforcement agents must take into consideration when determining whether to halt the deportation of a person who is in the country unlawfully. These factors are to be applied on a case-by-case basis. Such factors could include the length of time that the person lived in the United States, whether they have children born here in the United States, whether they have a spouse that is a Citizen of the United States, or whether significant medical issues exist for either the individual or members of the individual’s families. These are some of the factors that ICE will take into consideration.

On October 5, 2012, ICE issued another directive titled “Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships.” The purpose of this further clarifying memorandum was to specifically address same sex couples, including same sex married couples and those in long-term same sex domestic partnerships. This is a significant announcement by ICE. Currently, a U.S. Citizen or Lawful Permanent Resident may file an application for their spouse. The Immigration Laws do not permit this application to apply to a same sex spouse. So, even if one is legally married here in the United States, he or she may not sponsor a spouse if that spouse is of the same sex. This is the policy of the federal government and it also exists due to the Defense of Marriage Act, which is a law that defines marriage as between a man and a woman.

It is now the policy of ICE to factor in the existence of family relationships as it considers whether to grant prosecutorial discretion to allow someone to remain living in the United States, even if they are otherwise unable to apply to stay here. This is a fair and welcome policy change by the Department of Homeland Security.

We are here to answer any questions you have and give legal advice concerning this and other legal immigration concerns.