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 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 August 2011 about prosecutorial discretion?
On August 18, 2011 DHS reiterated its enforcement priorities of removing criminals and security threats and stated that it would initiate a procedure to review all of the open 300,000 cases in immigration court with the goal of closing those cases that don’t fit within their enforcement priorities. DHS will also look to positive factors which include family ties in the United States, and DHS has stated publicly that LGBT families are included within their understanding of “family.”
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?
It’s too early to tell. Immigration Equality, along with the whole immigrant community, is watching closely and waiting for more details.
Is it true that people whose cases are closed will get work authorization? Should I try to get into removal proceedings?
There have been mixed messages about work authorization. Again, it is too early to know who will get work authorization and under what circumstances. At this point we are NOT recommending 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.
Does this announcement help me at all if I am in lawful status, undocumented but not in removal proceedings, or living in exile?
It probably 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.
