Published: October 1, 2012

In the past week, Janet Napolitano, our top Department of Homeland Security official, announced that a removable foreign national’s “long term same sex” relationship in the U.S., like any other family relationship in the U.S., will be a relevant consideration in assessing whether that person should be a “priority” for immigration enforcement and appropriately the subject of removal proceedings (formerly deportation proceedings). This new factor will become a part of a formula that has emerged over the past year as part of a new Department of Homeland Security policy to determine against whom removal proceedings will be initiated, or whether proceedings will continue to be prosecuted in a given case.

Discretionary decision making by law enforcement authorities in terms of when and how law-breaking individuals are prosecuted has always been a part of our state federal, state and local governments’ modis operandi, especially when it comes to non-criminal infractions, such as violations of our country’s immigration laws. With more than 300,000 removal proceedings cases pending, the Obama administration program embarked upon the task of prioritizing these cases for enforcement and pursuant to a variety of factors. That assessment results in either an exercise of prosecutorial discretion to seek “administratively closure” of a pending removal case, or to continue prosecution for removal of the foreign national in question. Administrative closure effectively, and indefinitely, puts a halt to the deportation process. As initially envisioned when the policy was rolled out a year ago, the exercise of prosecutorial discretion would ultimately allow the subject foreign national to be eligible to obtain an Employment Authorization Document, an aspect of this initiative that continues to remain up in the air.

As stated, the priority assessment is also a component of Homeland Security agency decision making in deciding whether to initiate removal proceedings against a given “removable” foreign national in the first place.

Exactly what constitutes a “long term same sex relationship” remains to be determined, and no doubt, future administration guidance is forthcoming. Pursuant to previous administration policy, foreign nationals deemed a priority for initiation or continuation of removal proceedings include those with nearly any type of criminal conviction, especially those with convictions involving sexual abuse or exploitation, drug distribution or trafficking. Other priority foreign nationals include those posing a “significant threat to public safety”, human rights violators, gang members, individuals previously removed from the U.S., individuals who have committed immigration fraud, and individuals who have an egregious record of immigration violations.

Classes of removable foreign nationals that should be considered for “non-priority” enforcement status, and thus meriting an exercise of prosecutorial discretion, include: (1) current members or veterans of the military or the spouse or child of such an individual; (2) youths who have been in the United States for more than five years and have pursued educational opportunities in the United States – including those eligible for consideration under the new Deferred Action for Childhood Arrivals (“DACA”) program; (3) individuals over 65 and who have lived in the U.S. for 10 years or longer; (4) crime victims; (5) individuals who have been LPRs for 10 years or longer who have a single, “minor” conviction for a non-violent offense; (6) individuals with serious mental or physical conditions and (7) individuals who have a “very long-term presence” in the United States, and who have an immediate family member who is a U.S. citizen, have established compelling ties to the United States, or have made compelling contributions to the United States.

The year old policy has provided hope to many “non-priority” individuals who were previously facing deportation, but now are able to continue to live in the U.S., albeit in a limbo like status. Certainly, this most recent policy initiative will come as a huge relief to a whole new class of removable foreign national whose only family ties here is their long term same sex partner.

Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois