Prosecutorial Discretion for Immigrants in Same-Sex Relationships – Guest Blog

Guest Blog By Lianne Holt-Jensen
J.D.Candidate 2014
Seattle University School of Law

On September 26th 2012, letters were distributed clarifying the guidelines used to apply the policy of prosecutorial discretion in cases of same-sex partners. Under prosecutorial discretion, immigrants, with no criminal records, in same-sex partnerships, have been allowed to remain in the United States.

In the United States, immigration law abides by federal law. Though a same-sex marriage may be legal under some state laws, the marriage may not be recognized under federal law because the definition of “marriage” in federal law is still between a man and a woman.

Under prosecutorial discretion, courts may look into other factors to determine whether there is a family relationship, which would allow the immigrant to remain in the country. Prosecutorial discretion is the ability of the prosecutor to decide who to charge with a crime, what charges to file, when to drop the charges, and other prosecutorial decisions. Through prosecutorial discretion, thousands of deportation cases have been closed. However, these immigrants do not gain any legal status.

Before the application of prosecutorial discretion, immigrants in same-sex partnerships, with United States citizens, whose visas have expired, were being deported without remedy. Though most cases were awarded prosecutorial discretion, the guidelines were not clear or in writing. The written instructions include specifying “family relationships” and family ties to include “long-term same-sex partners” and include these immigrants under an Obama administration policy suspending deportation.

Though this is a big step for immigration law and the LGBT community, there is much further to go to establish equal rights for immigrants in same-sex partnerships. Immigrants in same-sex partnerships are still not allowed to obtain the permanent residency status that is currently awarded to immigrant spouses of United States citizens. The new guidelines do not address the issue of awarding green cards to immigrants in same-sex partnerships.

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation. Andre Olivie handles immigration cases for same-sex couples.