There has been a lot of information in the news recently about “prosecutorial discretion.” What does this mean?
Broadly, prosecutorial discretion is the broad discretion or leeway that any law enforcement agency (whether it’s a local criminal prosecutor’s office or the federal Department of Homeland Security which enforces our immigration laws) has to initiate a case against someone or to choose not to.
In the context of immigration, prosecutorial discretion means the authority that DHS has to not initiate removal proceedings; to terminate or close existing removal proceedings; and to stay, or not carry out existing removal orders.
What does “prosecutorial discretion” have to do with LGBT families?
We are fighting for full equality under the immigration law for all LGBT families. Certainly one of the worst effects of the federal government’s non-recognition of our families, is that some foreign nationals who would have been able to get a green card but for the fact that their spouse or partner is the same sex, are 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 U.S. Despite record numbers of deportations in the last two years, the Obama administration has stated clearly that its enforcement priorities are to remove serious criminals and security threats.
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 to press last year that it would consider LGBT family ties, until now it had not agreed to put the policy in writing.
Does this new 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. So, it remains to be seen how the criteria are applied and how many cases are actually closed.
How will the case closure procedure work?
In some cases where a foreign national is in removal proceedings, the ICE attorney is reaching out to offer to administratively close the case. The attorney for foreign national in removal proceedings can also submit a motion asking to have the case administratively closed. This 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 motion.
Is it true that people whose cases are closed will 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 and there is still no way to know how this process of closing cases will work.
Despite early signals that those whose cases are administratively closed might get work authorization, DHS is now saying 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 are simply having 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?
It doesn’t. At this point, DHS is trying to cut down on the immigration court backlog and to focus its resources on enforcement priorities. It is not extending any immigration benefits to LGBT families. 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.
Is this the “abeyance” policy Immigration Equality and others have been pushing for?
No. If DHS uses prosecutorial discretion to not remove LGBT spouses and partners, that is great. But it doesn’t benefit the thousands of families who want to be able to apply for lawful permanent residence and stabilize their immigration status. We are continuing to push the Administration to hold all green card applications in abeyance that would be approvable but for the Defense of Marriage Act because it is wrong to deny them based on a law that our own Department of Justice has found to be unconstitutional.