Gay Couple Spared Pain of Deportation Thanks to Prosecutorial Discretion

When the Obama administration announced that it wouldencourage the use of prosecutorial discretion to determine which undocumentedimmigrants should be targeted for deportation, immigrants and advocates werecautiously optimistic.

For too long, the administration’s practice ofheedlessly funneling undocumented immigrants through the deportation processfor “crimes” as minor as driving without a license has torn apart families andcommunities and resulted in over one million deportations since 2009.

The prosecutorialdiscretion policy, under which officers and lawyers within US Immigration andCustoms Enforcement (ICE) were given the power to either suspend or decline toinitiate deportation proceedings against immigrants with insignificant criminalrecords and deep ties to the US, has the potential to spare hundreds ofthousands of people the pain and suffering caused by deportation.

Now, as the first batch of cases to be considered forprosecutorial discretion are making their way through the system, both thebenefits of the policy and the challenges to implementing it are coming intofocus.

In San Francisco, for example, a married gay couple recently received a letter from the Department of HomelandSecurity notifying them that Anthony John Makk, an Australian citizen whosevisa had recently expired, would be allowed to stay in the US legally to carefor Bradford Wells, his US citizen husband of nearly eight years who issuffering from severe AIDS-related illnesses.

Because the 1996 Defense ofMarriage Act bars same-sex couples like Makk and Wells from receiving the samebenefits as married opposite-sex couples, Makk was not eligible to apply forpermanent residency in the US as a result of his legal marriage to Wells. Inthis case, prosecutorial discretion will spare a truly deserving family thepain of an unnecessary separation.

But the case of Makk and Wells also highlights thechallenges faced by those seeking to be spared deportation under the policy.Makk and Wells benefited from the personal intervention of House MinorityLeader Nancy Pelosi and Senator Dianne Feinstein, and their case was championedby Immigration Equality, a leading immigrants’ rights organization focused onhelping lesbian, gay, bisexual, and transgender immigrants.

Needless to say, most immigrants cannot count on powerfulpoliticians to help them stay in the country. But it is encouraging to see thatthe government has begun using prosecutorial discretion to help families thatwould be severely and needlessly harmed by its overly-aggressive enforcement ofimmigration laws.

As more cases are considered for discretion in the comingmonths, let’s hope that 2012 marks a decisive turning point in the way we treatimmigrants in our country.

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