Blog of Rights

Potential Relief for Same-Sex Couples Facing the Threat of Deportation

By Ian S. Thompson, ACLU Washington Legislative Office at 5:11pm

Over the past several months, there has been a steady drum beat of devastating news stories involving same-sex, binational couples facing the threat of deportation, including the recent example of a gay California couple in which one partner, the primary caregiver of his spouse who is living with AIDS, was facing the risk of having to leave the country (and his spouse and partner of nearly two decades). For couples facing this dilemma some measure of relief may soon be in sight.

On Thursday afternoon, Janet Napolitano, Secretary of the U.S. Department of Homeland Security (DHS), outlined a number of steps the department is taking to provide relief for low priority immigration cases through prosecutorial discretion. While there is concern about how implementation will actually play out in tempering the current practice of mass and indiscriminate deportations, at least some elements of the announcement suggest hope for positive change. Included among these are those involving same-sex, binational couples facing permanent separation as a result of deportation.

A senior administration official told Metro Weekly:

The prosecutorial discretion memo provides for the use of discretion for people with strong community ties, with community contributions and with family relationships. We consider LGBT families to be families in this context.

While the devil will ultimately be in the details, the case-by-case approach outlined by DHS may provide temporary relief for those same-sex couples where one partner is currently in removal proceedings. If DHS makes good on its new approach, the hope is that such a couple where one partner is a non-citizen will be seen as a very low priority for deportation, and thus will not find themselves in removal proceedings to begin with. However, because this approach will not provide for categorical relief for all couples facing this threat, advocates and organizations like the ACLU will need to remain vigilant.

The ad hoc, and sometimes last minute, approach to handling these cases thus far has done painfully little to instill much in the way of confidence. We hope the approach DHS outlined on Thursday, while not providing same-sex, bi-national couples with blanket protection, will at least temporarily remove the dark cloud of removal proceedings and deportation that currently hangs over the heads of too many gay and lesbian couples throughout the country.

The risk of potentially permanent separation from a partner or spouse is an all too common reality for the estimated 36,000 gay and lesbian bi-national couples in the U.S. This fundamental unfairness facing gay and lesbian binational couples is one more reason Congress should act and vote to repeal the discriminatory Defense of Marriage Act (DOMA), which forces these couples, in contrast to bi-national opposite-sex couples, to live in a constant state of legal limbo.

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