How ICE Policy of Prosecutorial Discretion May Help Gay or Lesbian Partners of U.S. Citizens

This article is now mostly relevant for historical purposes. Binational same-sex couples in which one person is a U.S. citizen or permanent resident have, thanks to the U.S. Supreme Court's decision in U.S. v. Windsor, gained the right to apply for a visa or green card if they have entered into a legal marriage (as defined by the laws of whichever state or country the wedding took place in).

Nevertheless, there could be situations where the couple is unable to get a green card -- for example, because one of them entered the U.S. illegally, which makes the person ineligible to adjust status (apply for a green card from within the U.S.) without a waiver. In cases like this, if you are part of a same-sex couple of which one member is from another country and seeks the right to stay in the United States, you may benefit from a U.S. immigration policy known as “prosecutorial discretion.”

Indeed, this policy has allowed some gay or lesbian immigrants to remain in the U.S. with their U.S. citizen spouse or partner (at least temporarily). However, it is important to understand both what this policy allows and what it doesn’t allow.

What Prosecutorial Discretion Literally Means

The people in charge of immigration enforcement, known as U.S. Immigration and Customs Enforcement (ICE), do not have the time or resources to deport or remove every undocumented or otherwise deportable immigrant who lives in the United States. So they must set enforcement priorities -- in other words, figure out who, or what type of foreign national, should be at the top of their list for arrest and removal. The rest, they are expected to overlook.

However, this longstanding policy had a new element added to it in a June 17, 2011 memo by ICE Director John Morton.

How the Morton Memo Changed Prosecutorial Discretion

The Morton memo laid out new guidelines for ICE agents to use when exercising prosecutorial discretion, recommending that special consideration be given to students and other upstanding immigrants with strong or longstanding ties to the U.S. who contribute to their community. It also recommended giving consideration to when the foreign national’s removal from the U.S. would split up a family.

Same-sex couples were not actually discussed in the Morton memo. However, follow-up actions and statements by the Department of Homeland Security (DHS), ICE, as well as the White House, plus various decisions by Immigration Judges in courts across the U.S., clarified that a same-sex marriage will be treated as a family tie for purposes of this exercise of discretion. And this should be further supported by the 2013 Supreme Court decision.

How Does Prosecutorial Discretion Help the Foreign-Born Gay or Lesbian Partner?

This new policy is not an amnesty, nor is it something you can directly apply for. The gay or lesbian partner of a U.S. citizen or permanent resident could still be arrested by the immigration authorities if he or she lacks legal status in the U.S. or has a green card but has become deportable. In fact, the person could still be deported (removed), which is especially likely if there is any criminal record.

If the person is already in deportation or removal proceedings, here’s how the new policy might help: DHS began reviewing cases of non-detained aliens in proceedings to figure out which should be administratively closed based on the Morton memo. (Note that this could affect numerous people, not just gays and lesbians.)

What about people who have not yet been picked up by ICE? They would need to wait for an arrest to make the request for an exercise of prosecutorial discretion. They can request this directly from ICE, even before their case gets to Immigration Court. Such a request would require showing upstanding behavior and the family tie to the U.S. citizen or resident partner. If the request is granted, the foreign national would essentially be put into legal limbo -- not deported, but not granted any permanent status, either.

If the request were denied, the foreign national would be referred to immigration court. There, he or she should be able to renew the request for prosecutorial discretion. (And should definitely check again on whether applying for a green card might be an option.) If granted, the case would be administratively closed -- which means put on a pending, inactive status.

Unfortunately, DHS has backed away from its early statement that anyone whose case has been administratively closed can apply for a work permit (also called an employment authorization document or EAD) from USCIS. As of late December 2011, it began saying that only the people who have an independent claim to an EAD, such as through a pending green card application, can apply for one. (But if you had that, chances are you wouldn't need an exercise of prosecutorial discretion!)

Is the possibility of prosecutorial discretion a reason for the foreign national to try and get arrested? No, this would be a highly risky strategy. Remember, it could still lead to removal -- especially if there's some subsequent reversal in policy. The very word “discretion” tells part of the story. This isn’t an absolute right, it’s a place where the enforcement agents get to make a personal decision. And unfortunately, in the early days of implementation, surveys showed that many ICE agents were deciding not to follow the new policy at all, seeing their role as to simply "arrest and deport."

For information on various methods of immigrating, see the articles under “All About U.S. Green Cards (Lawful Permanent Residence),” or the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).

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