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Prosecutorial Discretion

General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with a qualified immigration attorney about the individual facts of your case before making any decisions about your particular situation.

I have seen stories in the news about “prosecutorial discretion.”  What does this mean?

Broadly, prosecutorial discretion is the discretion or leeway that any law enforcement agency (whether it’s a local criminal prosecutor’s office or the federal Department of Homeland Security) has to decide when and how to enforce the law. In the immigration context, prosecutorial discretion means the authority that DHS has to not initiate removal proceedings; to terminate or close existing removal proceedings; to stay, or not carry out existing removal orders; and to join in or not contest motions to reopen removal and terminate removal proceedings.

What does “prosecutorial discretion” have to do with LGBT families?

Certainly one of the worst effects that DOMA previously had on our immigration laws was that some foreign nationals who would have been able to get a green card but for the fact that their spouse or partner was of the same sex, were placed in removal proceedings and facing imminent court-ordered separation from their loved one. When DHS uses prosecutorial discretion, it can close these removal proceedings (or not bring them at all) and allow the foreign national to remain in the United States. While gay and lesbian families now have more options to secure a permanent status in the United States, some gay and lesbian families will continue to need discretionary relief to avoid separation.

What announcement did DHS make in October 2012 about prosecutorial discretion?

For the first time, on October 5, 2012, the Department of Homeland Security issued written guidance to its field offices, clarifying that long-term, same-sex partners should be considered as family members and as a positive factor in exercising discretion. Although DHS had announced orally in 2011 that it would consider LGBT family ties, until October 2012 it had not agreed to put the policy in writing.

Does this policy mean that LGBT spouses and partners of American citizens and green card holders will no longer be deported?

This is an important step forward and will certainly prevent the removal of some LGBT foreign nationals (both in binational couples and not in binational couples) if they do not fall within the enforcement priorities. However, there is no blanket policy that anyone married to or in a relationship with an American will not be deported; everything is being reviewed on a case-by-case basis.

How does the case closure procedure work?

In some cases where a foreign national is in removal proceedings, an ICE attorney will reach out to offer to administratively close the case. The attorney for a foreign national in removal proceedings can also submit a motion asking to have the case administratively closed.  Administratively closing a case simply means that ICE is not currently actively pursuing removal. The foreign national is still technically “in removal proceedings” and either ICE or the foreign national can place the case back on the immigration court’s calendar with a subsequent motion.

Is it true that people whose cases are closed get work authorization?  Should I try to get into removal proceedings?

We do NOT recommend that anyone try to get put into removal proceedings. There is a huge risk of being physically deported once you are in removal proceedings.

DHS has said that if a person previously had work authorization based on a pending application (such as asylum or adjustment of status) he or she can continue to renew the work authorization while the case is administratively closed. It may also be possible in some very compelling cases for the foreign national to obtain deferred action and get work authorization on that basis. However, most individuals receiving prosecutorial discretion simply have their cases closed with no other relief pending or given and thus are not currently getting work authorization.

Does this announcement help me at all if I am in lawful status, undocumented but not in removal proceedings, or living in exile?

Not in any immediate way. Although, if you are in the U.S. without lawful status, there may be less reason to fear that you will be placed in removal proceedings simply for being here without lawful status.

Does the Supreme Court’s ruling striking down DOMA affect how DHS will exercise prosecutorial discretion for LGBT families?

On June 26, 2013, the Supreme Court struck down the Defense of Marriage Act, which had prevented the federal government from granting spousal benefits to lawfully married lesbian and gay couples. It is now possible for lesbian and gay Americans and lawful permanent residents to sponsor their foreign partners for immigration benefits in the United States. Now that DOMA has been struck down, DHS could use prosecutorial discretion to join in motions to reopen already closed removal proceedings and rescind any existing removal orders. This could then allow someone who is married to a same-sex U.S. citizen partner to adjust status to permanent resident (green card holder) before an immigration judge based on their now-recognized marriage. It could also be possible for DHS to join in a motion to terminate removal proceedings and allow that individual to adjust status through U.S. Citizenship and Immigration Services.

I was placed in removal proceedings, but my case was administratively closed through an exercise of prosecutorial discretion. How can I now apply for a marriage-based green card?

This is complicated and families in this circumstance should consult with a qualified immigration attorney to decide how to proceed in their case. For families where the foreign national has had their removal proceedings administratively closed, the U.S. citizen spouse should be able to file an I-130 petition. Once approved, the foreign national should be able to file a motion to reopen the removal proceedings with the immigration court. Once a case is reopened, the foreign national can seek to adjust status to lawful permanent resident (green card-holder) in front of the immigration judge or file a motion to formally terminate removal proceedings and then apply to adjust status through USCIS. However, foreign nationals who entered the U.S. without inspection, will likely have to return to their home country before applying for a green card, and will probably need to apply for an unlawful presence waiver.