Obama administration says it will consider same-sex partnerships in deportation proceedings

By Maria Sacchetti, Globe Staff

In a small but significant advance for gay and lesbian immigrants, the Obama administration has formally directed immigration agents to consider foreigners’ “long-term, same-sex” partnerships when deciding whether to stay their deportations from the United States.

Homeland Security Secretary Janet Napolitano on Thursday wrote members of Congress that she ordered Immigration and Customs Enforcement to issue written guidelines making clear that same-sex partners should be considered “family.”

“In an effort to make clear the definition of the phrase ‘family relationships,’I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners,” Napolitano wrote, adding that the temporary stays are decided on a case-by-case basis.

Federal officials said last year that they would take same-sex partnerships into account when weighing stays of deportation, but 84 members of Congress wrote Napolitano this summer to complain that same-sex couples continued to face deportation. Congress members expressed concern that many agents were unaware of the policy because it was not in writing.

Napolitano’s decision clarifies a memo from ICE Director John Morton last year that encouraged federal agents to focus on deporting criminals and other serious cases and consider stays for lower-priority cases, such as the sick, elderly, and people with family ties in the United States.

Advocates for gay and lesbian immigrants hailed Napolitano’s decision on Friday.

“It is one of the very first times that ICE or DHS have recognized lesbian and gay relationships for the purposes of an immigration benefit,” said Steve Ralls, spokesman for Immigration Equality, a nonprofit legal aid group that advocates on behalf of lesbian and gay immigrants. “So it certainly is a big step forward in terms of the administration’s commitment to ensuring US citizens are not separated from their same-sex partners.”

US Representative Nancy Pelosi, who led the effort for the change, said Napolitano’s decision to put the policy in writing will provide a “measure of clarity and confidence” to families dealing with the threat of deportation. “Our nation is served when loving families are kept together,” she said in a statement.

Others were more skeptical. Legally married immigrants in same-sex partnerships still cannot sponsor their spouses for visas and green cards because the 1996 Defense of Marriage Act says marriage is only for heterosexuals.

The act has frustrated couples, especially in states such as Massachusetts, where gay marriage has been legal since 2004.

Tim Coco, a Haverhill man who cannot sponsor his Brazilian spouse, Genesio Oliveira, for legal residency, said he appreciated Napolitano’s effort but said, “It dramatically falls short of equality.”

Coco and Oliveira had to live in different countries for nearly three years after they married in 2005. Oliveira was readmitted in 2010 under humanitarian parole. “The courts or Congress have to fix the real problem,” Coco said.

Immigration Equality said several lower courts have declared the act unconstitutional and advocates hope the Supreme Court will take up the issue soon and issue a decision next year.

Others criticized Napolitano’s letter as the latest in a string of efforts by the Obama administration to sidestep Congress.

“They’re unilaterally making policy when this is something that is Congress’ domain,” said Mark Krikorian, executive director of the Center for Immigration Studies, based in Washington, and which favors tougher limits on immigration. “They are picking and choosing which laws they’re going to enforce.”

The ICE agents’ union has also strongly criticized the Obama administration’s use of discretion to halt deportations, such as the president’s decision in June to allow certain young illegal immigrants to apply for stays of deportation.

In August, the union filed a federal lawsuit against Napolitano and Morton, accusing them of forcing immigration agents to violate their oaths to uphold federal law.

It is unclear how many immigrants will be affected by Napolitano’s decision this week. According to Immigration Equality there are 35,000 to 40,000 same-sex partners in the United States in which one person is an immigrant.