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Prosecutorial Discretion Guidelines May Provide Temporary Relief to Gay and Lesbian Bi-National Couples

Released on Fri, Aug 19, 2011

Washington D.C. –Yesterday, the Department of Homeland Security (DHS) announced that they are taking concrete steps to implement existing guidance on prosecutorial discretion across the agency in an attempt to provide relief for low priority immigration cases. DHS also announced the creation of a committee which will review 300,000 immigration cases currently in removal proceedings to determine which cases are low priority and can be administratively closed. One of the factors in determining low priority cases is family relationships and community ties—factors the Administration said yesterday may apply to gay and lesbian families.

There are currently 36,000 same-sex bi-national couples in the United States, many of whom are routinely denied applications for lawful permanent residence and other relief from deportation due to the Defense of Marriage Act (DOMA). Enacted in 1996, DOMA prevents the federal government—including DHS—from recognizing marriages or civil unions of same-sex couples for purposes of receiving federal benefits. Although the Administration determined that parts of DOMA were unconstitutional, DHS is still denying immigration benefits to same-sex spouses of bi-national couples.

DHS’s recent announcement, however, suggests that the guidelines on prosecutorial discretion may provide temporary relief to gay and lesbian bi-national couples. On a conference call hosted by the Immigration Policy center yesterday, a panel of experts discussed how the new policy may help gay and lesbian bi-national couples:

Mary Kenney, Senior Staff Attorney with the Council’s Legal Action Center, said:

“Immigration officers currently have the authority to exercise prosecutorial discretion, which essentially means that they have the authority to decide not to fully enforce immigration laws against an individual who is deserving of some relief but is not able to get it under any other law.

After DHS’s announcement, we’re really encouraged and hopeful [the guidelines] will provide relief to an even greater number of people than have previously received that relief. While it’s not a solution to the problems and the severe discrimination that DOMA has inflicted, it will hopefully set up a system for a much more comprehensive review of all cases which will give individuals an opportunity to really benefit on a much more systemic, equal playing field.” 

Victoria Neilson, Legal Director for Immigration Equality, said:

Immigration Equality, the American Immigration Council, and many senators and congress members have called upon the Administration to hold the green card applications in abeyance. As an agency, they have the authority to simply hold these applications and wait for the resolution of DOMA. Today, the Administration said they will not do that, but we’re continuing to push for that so gay and lesbian bi-national families will have a resolution for their situation.

Erwin de Leon, a Philippine native, Ph.D. candidate and spouse in a same-sex marriage, said:

If it weren’t for DOMA and if my marriage was recognized by the federal government, [my husband] would have sponsored me and I would have my green card by now. As much as we consider America our home—our families are here, we realize that we may very well have to leave for Canada or some other country that would welcome us and would want us. And that means separation from our families, our communities, our church families. It also means that the U.S. loses two individuals who love this country a whole lot and have so much to give back.

For more information on Immigration and the Defense of Marriage Act (DOMA), read:

For more resources on prosecutorial discretion, read:

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For more information, please contact Seth Hoy at shoy@immcouncil.org or (202) 507-5709

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