Today, the Department of Homeland Security threw a lifeline to undocumented immigrants who are in same-sex relationships with US citizens. New federal guidelines will allow ICE officers to take into account a same-sex relationship with an American partner when determining whether to pursue a removal proceeding. This doesn’t offer immigrants a path to permanent legal status, but it does provide “a way to mitigate the harshest consequences of the lack of immigration equality and prevent some couples from being physically separated,” said Victoria Neilson, an attorney with Immigration Equality.
These guidelines build on DHS’s 2011 directive  to concentrate enforcement priorities on immigrants with criminal records and stall the deportation proceedings of those who have not committed crimes. A same-sex relationship can now help qualify an immigrant as “low-priority” for deportation.
Immigration Equality and other advocates in Congress are still calling for a comprehensive reform that would enable the 36,000 Americans in same-sex relationships  to sponsor their spouses for permanent residence just as opposite-sex spouses can. For that, they’d need DOMA to be overturned, comprehensive immigration reform to be enacted, or the Uniting American Families Act to be passed. But momentum is clearly building in their favor. In 2009, Greg Kaufmann noted  that recognition for LGBT couples had been included in a broader immigration reform bill for the first time—and three years later, it’s in the Democratic Party platform.
Five years ago, I answered phones for the legal hotline at Gay & Lesbian Advocates & Defenders, a non-profit legal organization working to end discrimination against LGBT people and people living with HIV. Many of our callers—over a thousand each year—were in desperate straits, but the calls that felt most hopeless were often ones from same-sex couples in which one member of the couple was a US citizen, and one wasn’t. It fell to us hotline workers to explain that for the purposes of federal immigration law, the couple was considered legal strangers, and that the US citizen had virtually no chance of sponsoring his or her partner for legal status. At that time, we advised same-sex binational couples not to get married, because it could indicate an intention on the part of the undocumented partner to stay in the US past their visa, and trigger deportation proceedings. Often, callers were totally taken aback by the injustice of the law, and its blindness to their lives. This was deep into George W. Bush’s second term, and the idea that the federal government might be responsive to the concerns of LGBT people who were also immigrants seemed impossibly far-fetched.
So today’s news comes as a startling and exciting reprieve. But as with President Obama’s executive action to defer deportations of young undocumented immigrants, nothing in today’s guidance prevents a new administration from reversing course. “November 6th will be a strong indication of how long-lasting and durable this guidance will be,” said Steve Ralls, communications director at Immigration Equality.