Same-Sex Partners Recognized as Family Relationship

The U.S. Department of Homeland Security (DHS) recently issued correspondence stating that the relationship between long-term, same-sex partners will be recognized as a family relationship in a specific, limited context. The letter from Janet Napolitano, DHS Secretary, addressed the term family relationship as a factor to be considered by U.S. Immigration and Customs Enforcement (ICE) when exercising prosecutorial discretion. The details of this letter and the possible larger policy implications are discussed for the benefit of MurthyDotCom readers.

Background: Prosecutorial Discretion Memorandum

In June 2011, ICE Director John Morton issued a memorandum (Morton memo) setting forth a policy on the appropriate exercise of prosecutorial discretion in the removal (formerly deportation) context. The Morton memo was intended to guide ICE in choosing how to use their resources best. It set forth discretionary factors to be weighed in determining whether to pursue removal action against any particular person.

Family relationships and family ties to the United States are one of the favorable factors to be considered by ICE when exercising discretion. More information regarding the memo is available in our NewsBrief, ICE on Prosecutorial Discretion: Real Relief or Business as Usual? (8.Jul.2011).

Family Relationships Includes Same-Sex Partners

The lack of recognition under federal immigration law of same-sex partners is a longstanding and evolving matter. Such relationships are not recognized as spousal relationships in the immigration context, even if the couple is legally married under the laws of certain states that recognize the marriages as valid under state law.

In a letter dated September 27, 2012, Secretary Napolitano responded favorably to an inquiry from members of the U.S. House of Representatives regarding the inclusion of same-sex partners within the definition of the phrase “family relationships” used in the 2011 Morton memo.

The DHS Secretary’s letter states that she has directed ICE to issue written guidance confirming that the interpretation of family relationships includes long-term, same-sex partners. This means that, even though immigration benefits cannot be obtained in a family or employment context through a same-sex partner, the relationship will be recognized generally as a family tie in the context of ICE’s decision whether or not to initiate or pursue the removal of a foreign national. More information on the treatment of same-sex partners in an immigration context can be found in our NewsBrief, Immigration Based on Same-Sex Marriages: Rapid Change and Widespread Confusion (29.Apr.2011).

Other Potential Applications with Favorable Overtones

While Secretary Napolitano’s letter was limited to the specific phrase in the Morton memo, there are many other areas within immigration law in which family ties are considered in a discretionary context. There are waivers and other forms of discretionary relief that require balancing favorable against unfavorable considerations. Again, same-sex spouses are not given recognition as spouses, but are being given recognition as members of one’s family in this context and, potentially, in other discretionary contexts within immigration.

Conclusion

Individuals in same-sex relationships face even greater immigration hurdles in many instances, as they cannot obtain the same family or derivative (dependent) immigration benefits that are available in recognized spousal relationships. The recognition of their ties as family members in the removal context is likely to be helpful to these individuals, and is a positive toward recognition for this community.

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