Responding To Requests For Clarity On Same-Sex Binational Couples, DHS Offers More Confusion

On Wednesday, over 80 members of congress called on the Department of Homeland Security to offer some clarity to same-sex, binational couples who are in immigration limbo because of the Defense of Marriage Act. Such couples would be considered eligible for green cards if the federal government recognized their marriages. Instead, they live in fear that they could be forced to leave the country or live separately. And while the government has promised prosecutorial discretion for low-priority cases, DHS never clarified whether being in a relationship would help a case be considered low-priority.

DHS today responded to the Members’ calls for clarity with an assurance that “ties to the United States as demonstrated by his or her same-sex marriage” are be “low priority.” It seems to indicate — though not directly — that being in an LGBT relationship will be a positive contributing factor in making cases low priority:

“[W]hen exercising prosecutorial discretion in enforcement matters, DHS looks at the totality of the circumstances presented in individual cases, including whether an individual has close family ties to the United States as demonstrated by his or her same-sex marriage or other longstanding relationship to a United States citizen,” Peter Boogaard told BuzzFeed in response to a question posed by a reporter on Monday[…]

Boogaard told BuzzFeed that the department would be continuing to enforce DOMA — which prevents green cards from being issued to foreign same-sex partners of Americans — “unless and until Congress repeals it, or there a final judicial determination that it is unconstitutional.” The Obama administration has noted that continued enforcement since President Obama and the Department of Justice announced in February 2011 they would no longer be defending DOMA in court challenges.


There is reason to be cautious, though. A year ago, when DHS announced prosecutorial discretion, couples were hopeful that they would be considered low priority. But when pressed after just a few months for some concrete commitment on how it would affect same-sex couples, DHS failed to confirm to members of congress that those relationships would help individuals get relief.