John Morton, Director of Immigration and Customs Enforcement (ICE), released a memo to employees of his agency to clarify how ICE personnel should use their time, energy and resources in deporting undocumented immigrants and more importantly, who among undocumented immigrants should be deported.
The memo augers well for some immigrants, particularly those who were brought to the United States as children. These are kids, teenagers and young women and men who know no other home and consider themselves American. Morton includes among “positive” factors which “should prompt particular care and consideration” minors and elderly individuals as well as individuals present in the United States since childhood.
As the foreign-born half of a gay binational couple, I can’t help but wonder how the memo would affect me, my spouse and thousands of other legally married or partnered couples like us.
Gay rights advocates have been quick to express their concern. Although ICE representatives are encouraged to consider whether an individual has a spouse who is a U.S. citizen or permanent resident, it is not clear whether this applies to lesbians and gays. Immigration status is a federal matter, and legal gay marriages and civil unions are not recognized by the U.S. government thanks to the Defense of Marriage Act (DOMA).
Rachel Tiven, executive director of Immigration equality argues:
“While ICE has taken a significant step in recognizing that tearing families apart should not be a government priority, it must be explicit that lesbian and gay families are protected, too.”
She adds, “Given the absence of any LGBT family recognition at the federal level, the decision not to explicitly include our spouses and partners in the ICE memo is striking.”
The Morton memo nonetheless leaves me cautiously optimistic, since it has additional criteria that can be read as benefiting gay immigrants and their families. ICE personnel, for instance, are advised to take into account whether a person has a child or is the main caretaker of an ill spouse.
Fact is however, ICE employees are all too human and “prosecutorial discretion” can easily be influenced by a person’s background, political and religious beliefs, and deep-seated biases. Those who believe that all people should be treated equally and fairly will most likely execute the memo’s guidelines mindful of gay families. Those who are prejudiced against gays can choose to judge harshly.
This can be the case not only with lesbians and gays but with immigrants in general. Racism and nativism can surface alongside homophobia.
While the Morton memo is a step forward, it is merely an exhortation, not by any means an enforceable regulation or law. The disclaimer at the end makes it very clear that ICE personnel still can and will deport undocumented immigrants.
Until LGBT-inclusive comprehensive immigration reform is passed, what is needed is an executive order that halts the deportation of foreign-born spouses and recognizes gay marriage and domestic partnerships for immigration purposes. Ultimate resolution of the plight of gay binational couples can only come through federal legislation such as the Uniting American Families Act or the Reuniting Families Act which seek to treat LGBT families equally and fairly. Or through repeal of the patently unfair and discriminatory Defense of Marriage Act.
You can follow Erwin on Twitter at @ErwindeLeon.