Pro-immigration and gay rights groups have good reason to celebrate, following some big news that dropped Friday. The Department of Homeland Security has officially declared that undocumented immigrants’ same-sex relationships should be taken into account before it is determined whether or not they should be deported. DHS says same-sex couples have always been granted special protection, but the policy was not made official until this week.
Here’s why this matters. Deportations are handled by the Immigrations and Customs Enforcement, which starting in June 2011 was strongly encouraged to use “prosecutorial discretion” regarding deportations. In other words, if an undocumented immigrant without a criminal background had strong family ties, was pursuing an education, etc., ICE was encouraged to let them stay and instead root out illegal aliens who actually posed a threat to Americans. None of the same guidelines were issued regarding homosexual couples. ICE agents could therefore deport undocumented immigrants in same-sex partnerships without taking much heat for it. Now, that changes.
The good thing about prosecutorial discretion is that it allows agents to use their human decency, rather than a set of hard-and-fast rules, when deciding whom to deport. The bad thing about prosectuorial discretion is that many of those agents seem lacking in human decency. As my former colleague Nathan Pippenger has documented over at TNR, the ICE union was enraged at the very notion that it should spare any illegal immigrants. “Our hands are tied,” said Chris Crane, the head of the ICE union. His agency, he charged, was being run by “a bunch of attorneys who have never put handcuffs on anybody.” Though Crane claimed the administration was threatening officers who didn’t abide by the new PD rules, there have been plenty of cases to suggest willy-nilly deportations are alive and well. By the same token, the Obama administration has suspended only two percent of the 411,000 scheduled deportations it has reviewed. (More recently, Crane sued DHS and ICE, after it announced it was deferring deportation for certain immigrants brought here illegally as children.)
Put another way, this week’s news is only as good as ICE agents want it to be.