Last week,U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano stated in writing that she had ordered Immigration and Customs Enforcement (ICE) to consider long-term, same-sex relationships in deciding whether to grant prosecutorial discretion. Though DHS insists this is not a new policy, it is the first time such a policy has been put in writing by the U.S. government.

Guidelines issued last year on prosecutorial discretion formalized a policy focusing on the removal of undocumented immigrants with criminal convictions. Because of the policy, undocumented immigrants with no criminal convictions and “ties and contributions to the community, including family relationships” would be eligible for prosecutorial discretion, thus halting deportation. In her letter,Napolitano stated that “family relationships” in this context includes“long-term, same-sex partners.”

Gay rights groups have applauded the statement, as it is the first time the government has put anything in writing acknowledging same-sex relationships as a positive factor in an immigration case. Same-sex couples are none the less prohibited from other immigration benefits such as the filing of marriage-based green card petitions under the Defense of Marriage Act.

For more information on prosecutorial discretion or immigration issues facing same-sex couples, please contact Bill Flynn.