'Prosecutorial discretion' also available for gay and lesbian partners

In June 2011, John Morton, the Director of Immigration and Customs Enforcement (ICE) issued a memo on “prosecutorial discretion,” whereby ICE would refrain from going after, or removingdeporting, certain people who did not really pose a risk or threat to the US, even if they were here illegally. This policy applied to people who were currently in removal proceedings, or even had a final order of removal against them.

In fact, my office has been successful in negotiating with trial attorneys (prosecutors in deportation proceedings), to agree to exercise prosecutorial discretion, and reopen removal proceedings or terminate removal proceedings on behalf of some of our clients.

The basic philosophy behind prosecutorial discretion is that ICE has limited resources, and cannot really go after and deport everyone who is in the US illegally. So, if the person really does not pose that big of a risk to society, ICE will agree to “leave them alone,” and instead go after the really bad guys, who do pose a serious threat to public safety or national security. (Prosecutorial discretion would be analogous to a police officer standing at a street corner and observing a jaywalker and bank robber. Who should the police officer go after? Of course you will say the bank robber. However, isn’t the jaywalker also breaking the law? Shouldn’t he also be punished? Prosecutorial discretion recognizes that although the jaywalker is breaking the law, he’s not posing that big of a threat. Therefore, the police officer should go after the dangerous bank robber, and leave the jaywalker alone for now)

In deciding to exercise prosecutorial discretion, there are a number of factors that ICE will take into consideration. Among those factors are, “the person’s ties and contributions to the community, including family relationships.”

Recently, the Secretary of the Department of Homeland Security, Janet Napolitano, clarified that “family relationships” includes longtime gay and lesbian couples: “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.”

What this means is that if a person is in removal proceedings, or even has a final order of removal against them, but has a same sex partner who happens to be a US citizen, that relationship could be used as a factor in obtaining prosecutorial discretion, which could result in your case being reopened or terminated/dropped.

While the Department of Homeland Security still does not recognize petitions by same-sex partners, at least it will recognize those relationships in connection with deciding whether or not to exercise prosecutorial discretion. Please also note that prosecutorial discretion does not grant any form of “status”, but it will at least give you some “breathing space” by having ICE agree to “leave you alone.”.

If you are in removal proceedings, I would strongly suggest you seek the advice of an attorney, who could evaluate your situation, and determine the possible relief available to you, including prosecutorial discretion.

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