The U.S. Department of Homeland Security (DHS) stated as official, written policy that non-U.S. citizens in long-term same-sex relationships with U.S. citizens and facing deportation are eligible to have their deportations suspended under a 2011 policy of prosecutorial discretion. Under this administrative framework, U.S. law does not change but DHS will not enforce existing orders of removal for this particular class. The DHS policy under the Obama administration has been to focus enforcement resources on deporting unauthorized aliens who pose a security risk to the United States, and consider other factors when a person is not a risk. If an immigrant does not have past criminal convictions, immigration officials deciding whether to pursue removal are instructed to consider factors such as family relationships and the age at which the individual entered the United States. The new instructions clarify that “family relationships” can include same-sex partnerships.
DHS officials previously indicated that that LGBT partners are protected under the prosecutorial discretion policy, but this is the first time the department has clarified that position in written instructions to its enforcement officers. The guidelines will prevent confusion in the field and also serve as documentation that can strengthen individuals’ cases for deferment after they have been apprehended. However, because the program is only an administrative policy, it can be withdrawn under a subsequent presidential administration.
The new guidelines continue a U.S. policy trend towards recognizing the rights of the LGBT community for immigration, asylum and refugee purposes. The Immigration Act of 1990 removed a restriction that prevented LGBT persons from immigrating to the United States. The Board of Immigration Appeals’ 1994 decision in Matter of Toboso-Alfonso recognized sexual orientation as “membership in a particular social group” and thus established a precedent for asylum based on sexual orientation. In December 2011, President Obama issued a memo outlining a plan for federal agencies to improve protection and assistance to LGBT refugees and asylum seekers.
The United States policy is the latest development in a growing international trend of recognizing LGBT persons’ need for protection from discrimination. Article 21 of the Charter of Fundamental Rights of the European Union, which became legally binding in 2009, expressly prohibits discrimination based on sexual orientation. In 2011, the Inter-American Commission on Human Rights decided to create the Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons. That same year, the UN Human Rights Council (HRC)—with strong support from the U.S. State Department—passed the first resolution supporting equal rights, regardless of sexual orientation. While the DHS guidelines are not as far-reaching as some of these, they could inform policy decisions on LGBT rights in the United States in the future.