Prosecutorial Discretion Impact on Same-Sex Bi-National Couples

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As we previously informed, the Department of Homeland Security (DHS) has announced that it would provide prosecutorial discretion so as to provide relief for low priority immigration cases. DHS stated that a new committee will review 300,000 immigration cases currently in removal proceedings to determine which cases are low priority and can be administratively closed. And since one of the factors used in determining low priority cases are family relationships and community ties, how will this specifically impact gay and lesbian bi-national couples? Same-sex bi-national couples are fully aware of the limitations on federal immigration relief. Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia and sole caregiver to his sick spouse, applied for permanent residency but his application was denied in a decision based on theDefense of Marriage Act (DOMA). This gay couple from San Francisco said the decision was infuriating and upsetting, “I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married,” Mr. Wells said. There are currently 36,000 couples, many of whom have routinely been denied residency applications and other relief from deportation due to DOMA, which was enacted in 1996, preventing the federal government-including DHS-from recognizing marriages or civil unions of same-sex couples for purposes of receiving federal benefits. Even though the Obama administration has determined that DOMA was unconstitutional, DHS is still denying immigration benefits to same-sex spouses of bi-national couples. Be that as it may, couples like Makk and Wells still have options-more so than ever before. According to DHS’s announcement last week, some positive factors that will be used in identifying low priority immigration cases include family relationships and strong community ties, both of which Administration officials indicated may apply to gay and lesbian bi-national couples. According to Mary Kenney, Senior Staff Attorney with theAmerican Immigration Council’s Legal Action Center: “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 yesterday, we’re really encouraged and hopeful [that 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.” We-the immigrant community, supporters, and advocates, including DREAM Act students, gay and lesbian bi-national couples, and others who may benefit from these guidelines will be watching the Administration closely as they begin to review cases and implement the policy.

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