Homeland Security Secretary Janet A. Napolitano said this week gay and lesbian partners will be considered as family members when immigration agents are trying to decide whether or not to try to deport someone from the U.S.
The directive means illegal immigrants in gay or lesbian partnerships with Americans could be spared deportation under the same leniency that is already often accorded to married couples.
But it also raises questions about how it squares with the federal Defense of Marriage Act, which is tied up in the courts. It defines marriage at the federal level as the legal union between a man and a woman.
"In an effort to make clear the definition of the phrase 'family relationships,' I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase 'family relationships' includes long-term, same-sex partners," Ms. Napolitano said in a letter Thursday to House Minority Leader Nancy Pelosi.
Mrs. Pelosi led House Democrats this past summer in asking for the change in policy.
The new directive is part of the Obama administration's recent push to focus deportation efforts on those immigrants who have the longest criminal records or who have repeatedly violated immigration laws. The push is meant to remove the threat of deportation from most rank-and-file illegal immigrants.
The new non-deportation policy has several key parts. One part applies to illegal immigrants who would have qualified for the Dream Act — legislation that never was passed, but which would have given illegal immigrants 30 and under a path to citizenship. Under the new Obama policy, they are given tentative legal status and work permits; though it is not a path to citizenship, which can only be granted by Congress.
The second part to the policy ordered U.S. Immigration and Customs Enforcement agents to look for extenuating circumstances that might make them less likely targets for deportation. Separation from family was one of those circumstances, which is where the new directive on gay and lesbian partners comes into play.
"This written guidance will simply reiterate existing policy regarding how DHS considers the totality of circumstances presented in individual cases when exercising prosecutorial discretion in enforcement matters," said department spokesman Peter Boogaard. He said the 2011 policy on extenuating circumstances was always meant to apply to same-sex couples, and this new directive will make that clear.
Mrs. Pelosi and her fellow Democrats said they are aware of "several instances" over the past year when same-sex partners were deported anyway — and said this new written directive should prevent that.
"Our nation is served when loving families are kept together," Mrs. Pelosi said Friday.
The new directive covers illegal immigrants, but Mrs. Pelosi and fellow Democrats said they are still fighting to allow same-sex partners to immigrate legally under the same rules as other married couples.
Gay couples say the Defense of Marriage Act, a 1996 law passed by a Republican Congress and signed by President Clinton, prohibits them from applying for immigration benefits because the law defines marriage at the federal level as the union of a man and a woman.
House Judiciary Committee Chairman Lamar Smith, Texas Republican, said DOMA should have prevented the new Homeland Security directive as well.
"No president had the right to do that. It conflicts with their oath of office to enforce laws and abide by the Constitution," he said. "If the administration doesn't like a law, they should wait until it's changed, not ignore it. That's called democracy."
Homeland Security officials didn't respond to a question about how this new policy squared with DOMA.
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