As promised, the Department of Homeland Security has issued written guidance for how to consider deportation cases involving same-sex binational couples, whose relationships are not recognized under federal law because of the Defense of Marriage Act. According to the memo, there are three criteria that must be met in order for same-sex relationships to be treated as “family relationships”:
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.
When these simple criteria are met, immigration officials should apply prosecutorial discretion, treating these families as “ties and contributions to the community.” As in all cases, family relationships may be outweighed by other circumstances such as criminal history or prior immigration violations.
This is the first time that same-sex binational couples have been protected in writing. Previous oral guidance had not been thoroughly implemented, resulting in uncertain limbo and continued confusion for many couples. It is unclear if this new policy will rise to the same level of protection opposite-sex marriages have in immigration law, though it is an important step forward from the previous lack of clarity. Most likely, however, same-sex couples will not be fully secure until DOMA is repealed or circumvented by legislation such as the Uniting American Families Act.