Gay couples could benefit from procedural discretion

In an unprecedented decision, Secretary of Homeland Security Janet Napolitano issued an order to Immigration and Customs Enforcement (ICE) that it must include same-sex couples in a long-term relationship within the definition of familial relationship.

In a letter addressed to members of Congress, Napolitano notified them of her instructions to ICE.

By determining that same-sex couples in long-term relationships have family ties, it is established as a valid ground for suspending the deportation of the foreign national based on the memorandum that ICE Director John Morton issued last year.

The memorandum of June 2011 stated that agency officials and attorneys may use prosecutorial discretion and "consider the totality of the circumstances presented in each case, including whether an individual has immediate family members in the United States," when reviewing pending deportation cases and deciding which should be given priority and which may be deferred.

Procedural discretion does not mean that undocumented immigrants married to U.S. citizens or permanent residents of the same sex will be able to obtain green cards or citizenship.

Considering the family ties of gay couples only opens the door to prosecutorial discretion, authorizing ICE to evaluate their cases and determine whether or not to defer deportation.