Immigration Option for Gay Men & Lesbians in Deportation

April 5, 2012

Thumbnail image for rainbow_flag.gifThe immigration attorneys at the Law Offices of J Craig Fong -- with clients from the Coachella Valley and Palm Springs, to Southern California and Los Angeles, and throughout the world -- have been closely watching the implementation of the prosecutorial discretion policy as it affects gay men, lesbians, and persons in nontraditional family relationships.

As readers of this blog may recall, in the latter half of 2011, the Obama administration instructed its enforcers of the immigration laws (also known as the Immigration and Customs Enforcement branch of the Department of Homeland Security) to consider exercising its discretion to dismiss "low priority" deportation and removal cases. The "Morton Memo" indicated that the following criteria may be viewed as positive factors:

Circumstances of arrival - especially if the person came to the US as a child
Pursuit of education - if they have graduated from high school in the United States and/or are pursuing higher education
U.S. Military service
Ties to the U.S., including family relationships
Pregnant or nursing women
Age, especially for minors and the elderly
If the person is a primary caretaker of another person with a severe illness or disability
Persons who are likely to be granted temporary or permanent status because they are an asylum seeker, victim of domestic violence, human trafficking, or other crime

In the months that have followed, many questions were raised and Immigration and Customs Enforcement continues to tweak the memo's implementation. However, one question that seems to be resolved is that the government appears to recognize that an individual in removal proceedings who is in a bona fide same-sex relationship may be deserving of prosecutorial discretion.

Earlier this month, a gay Costa Rican man was spared from deportation based in part due to his 2008 marriage to a U.S. citizen. Last year, an Immigration Judge in New Jersey granted a reprieve in the deportation proceedings against a Venezuelan man married to a U.S. citizen. However, the policy does not appear to be uniformly applied, as a couple in Philadelphia still faces the prospect of separation.

The immigration attorneys at the Law Offices of J Craig Fong cannot stress enough: This is not "amnesty." There is no new program for legalization here. The government is not providing any lawful permanent resident status or employment authorization. However, in some circumstances, the Government IS viewing a same-sex marriage as a positive factor and allowing some non-traditional families to stay together inside the United States.

If you are a gay man or lesbian or in a nontraditional family relationship, or if you or a loved one is facing the prospect of removal from the USA, you should consult with the immigration attorneys at the Law Offices of J Craig Fong. We have offices in Los Angeles and Palm Springs. Attorneys at our firm have served the gay and lesbian community with pride for over a quarter of a century. --jcf & ra