Nancy Pelosi with binational couple Bradford Wells and Anthony John Makk.
Obama Administration Issues Written Deportation Guidelines for Binational Couples

By Julie Bolcer

Originally published on Advocate.com October 10 2012 9:58 AM ET

New written guidelines from the Obama administration outline the conditions under which binational same-sex couples may be considered to have a “family relationship” for the purposes of immigration officials deciding whether to proceed with deportation actions.

The criteria, listed in a memo issued this week by U.S. Immigration & Customs Enforcement, answer questions that have persisted since June 2011, when the agency advised in a memo that officials should consider “ties and contributions to the community, including family relationships" while exercising their prosecutorial discretion over low-priority deportation cases. Last week, Department of Homeland Security Secretary Janet Napolitano, who oversees ICE, indicated in a letter to Congress that the guidance would be forthcoming after 84 House Democrats wrote to request the clarification.

According to the Washington Blade, which reported on the latest memo, the agency has now made explicit three criteria that immigration personnel should consider when looking at “family relationships involving long-term, same-sex partners.” The memo says “the factor of ‘family relationships’ encompasses two adults who are in a committed, long-term, same-sex relationship.”

Dated October 5 and signed by three senior ICE officials, the memo is addressed to all the agency’s field office directors, chief counsels, and special agents in charge. It states the following:  

“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.”

The memo adds that family relationships are “only one of many factors” that officials should consider when looking at the “totality of circumstances” in a given case. “Family relationships may be outweighed by criminal history, prior immigration violations, or other indicia that an individual meets ICE enforcement priorities,” it says.

Immigration attorney Lavi Soloway, co-founder of Stop the Deportations, told the Blade that the memo, which represents the first such written guidance from the administration pertaining to same-sex couples facing deportation, marked a “great start” and showed the administration could develop “innovative, interim remedies.” Because of the Defense of Marriage Act, U.S. citizens cannot petition for legal status for foreign-born same-sex partners.

"We are grateful that the Obama administration has finally issued written guidelines that we can take into court when we fight deportations," he said. "We continue to represent numerous same-sex couples in immigration courts around the country who are facing imminent deportation, and this document will help us finally resolve those cases so that no couple is torn apart."

"Specifically, this guidance helps clarify that foreign-national spouses and partners of gay and lesbian Americans are now protected from deportation," added Soloway in a full statement. "This new guidance will help bring an end to the confusion caused by the contradictory signals the administration had been sending: that DOMA precluded the recognition or even the acknowledgement of married lesbian and gay bi-national couples who were facing deportation, and the fact that these couples are same-sex partners who constitute families that should not be broken apart."