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 have heard of a new 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.
Why Same-Sex Couples Can’t Currently Get a Marriage-Based Green Card
For many years, the U.S. Congress, as well as U.S. Citizenship and Immigration Services (USCIS, formerly called the INS) have taken the position that only heterosexual marriages counted for immigration purposes. (As you are probably all too aware, a U.S. citizen or lawful permanent resident can petition for his or her opposite-sex spouse to obtain a green card, as described in “Family-Based Visas and Green Cards.”)
They were not swayed by the fact that six states as well as the District of Columbia allow same-sex couples to marry, and nine other states offer marriage-equivalent relationships (see "Chart: Same-Sex Relationship Recognition by State"). They also closed their eyes to the fact that numerous other countries allow some form of same-sex marriage, together with immigration rights. Their reasoning was that the federal Defense of Marriage Act (DOMA) defines marriage as between a man and a woman, and immigration law is federal. Thus DOMA prohibited, and continues to prohibit, a U.S. citizen or permanent resident from helping a spouse or civil partner of the same sex obtain a U.S. green card (permanent residence).
But in 2011, the legal landscape began to shift, when the Justice Department (DOJ) announced that it would stop defending DOMA in court. DOJ actually began filing legal briefs arguing against DOMA's constitutionality. The Supreme Court is eventually expected to address this constitutionality question.
However, given how long it will take this matter to wend its way through various lower courts, experts say that we shouldn't expect a Supreme Court decision before at least 2013. In the meantime, there's still no way for a U.S. citizen to petition for a same-sex spouse to receive a green card. The best they can hope for is an exercise of prosecutorial discretion, under another new policy announced in 2011.
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., have clarified that a same-sex marriage will be treated as a family tie for purposes of this exercise of discretion.
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 is 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. (The details and procedures are still being worked out.) 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, as of late 2011, surveys showed that many ICE agents were deciding not to implement the new policy at all, seeing their role as to simply "arrest and deport."
Until a true marriage-based option is developed for same-sex couples, they will need to seek another path to a U.S. green card. 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).