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LGBT Rights Surge in October: DHS Counts Same-Sex Marriages as "Family Relationships" and Second Circuit Strikes Down DOMA

The month of October has brought with it two important victories for the LGBT community, boding well for same-sex relationships nationwide in both the civil rights and immigration contexts.

Prosecutorial Discretion

First, on October 5, 2012, U.S. Immigration and Customs Enforcement (ICE) issued a memorandum stating that same-sex relationships that rise to the level of "family relationships" can be considered a factor in determining whether or not to exercise their prosecutorial discretion. Prosecutorial discretion is the authority that the Department of Homeland Security (DHS) has in deciding how to pursue each immigration case, such as whether or not to bring immigration charges, arrest immigrants who may be removable, cancel immigration charges or agree to an application for relief, or defer removal of an immigrant who already has a final order of deportation.

In deciding how to use their prosecutorial discretion, DHS engages in a case-by-case review process, and considers factors such as the immigrant's length of presence in the United States, any criminal history, and "the person's ties and contributions to the community, including family relationships." For example, among other factors, an individual with no criminal history, who is married to a U.S. citizen and has lived in the United States for many years, would likely be a better candidate for prosecutorial discretion than someone who has a lengthy criminal history, or who has no U.S. citizen relatives.

The October 5th announcement now clarifies that same-sex relationships are considered "family relationships" for prosecutorial discretion purposes, as long as the relationship is long-term and the individuals "are each other's sole domestic partner and intend to remain so indefinitely; are not in a marital or other domestic relationship with anyone else; and typically maintain a common residence and share financial obligations and assets." October 5th Memorandum. This means that where an immigrant is facing deportation, the hardships suffered by his or her same-sex partner in the event of deportation will be taken into account in the overall discretion determination.

Before now, LGBT families had no guarantee that their family relationships were included in DHS's promise of prosecutorial discretion. The October 5th guidance should greatly help individuals who are facing deportation and the separation of family members.

"Defense of Marriage Act" (DOMA) Overruled in the Second Circuit

On October 18, 2012, the U.S. Court of Appeals for the Second Circuit held that the "Defense of Marriage Act" (DOMA) is unconstitutional, becoming the second U.S. Court of Appeals to do so after the First Circuit struck it down last May. DOMA, enacted in 1996, is the federal law that defines marriage as "the legal union of one man and one woman" for federal and inter-state recognition purposes in the United States. In striking down the Act, the Second Circuit held that laws that are discriminatory on the basis of sexual orientation must meet the standards of "intermediate scrutiny," meaning they must be "substantially related to an important government interest." The Court found of course that DOMA was not substantially related to any important government interest.

With two U.S. Courts of Appeals holding DOMA to be unconstitutional, it is clear that the fate of the Act will soon be in the hands of the Supreme Court. An end to DOMA at the Supreme Court would pave the way to federal recognition of same-sex marriage across the country, and equal rights and benefits for all couples, including in the immigration context.

Currently, under DOMA, an individual who is legally married to his or her same-sex spouse under state law cannot receive any immigration benefits from that spouse, as the marriage is not between "one man and one woman." In one 2011 case, for example, a San Francisco man's visa petition for his husband, who he legally married in California in 2004, was denied under DOMA.

With more than six different appeals regarding DOMA pending before it, in addition to the appeal of the Ninth Circuit decision striking down California's ban on same-sex marriages, the Supreme Court will likely consider the issue of equal marriage soon. Hopefully, equal rights and benefits for all couples will be quick to follow.

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