Prosecutorial Discretion Guidelines Leave Same Sex Couples (and Pretty Much Everyone Else) Out in the Cold

I apologize for the brief hiatus from the blog.  Unfortunately, my court schedule last week took up all of my time.

Last week was a busy news week. The most insignificant public relation move coming from the White House was the announcement that Thursday marked the beginning of the Obama administration's review of 300,000 pending deportation cases.  The administration has issued another set of guidelines for determining what individuals will been given preferential treatment, and receive a favorable exercise of prosecutorial discretion.

The most notable omissions in the guidelines is the conspicuous absence of LGBT couples from consideration, which is one more indication that this administration is still fully enforcing the Defense of Marriage Act.

Here are the guidelines for people who may get lucky enough to receive a favorable exercise of prosecutorial discretion to avoid to avoid the ensuing public relations nightmare when their case garners national media attention:

• Individuals who in good standing in the Coast Guard or Armed Forces of the United States, an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, or the spouse or child of such a member or veteran;
• Children that have been in the United States for more than five years, and are either in school or have successfully completed high school (or its equivalent);
• Individuals that came to the United States under the age of sixteen, have been in the United States for more than five years, have completed high school (or its equivalent), and are now pursuing or have successfully completed higher education in the United States;
• Individuals over the age of sixty-five that have been present in the United States for more than ten years;
• Victims of domestic violence in the United States, human trafficking to the United States; or of any other serious crime in the United States;
• Lawful permanent resident for ten years or more and have a single, minor conviction for a non-violent offense;
• Individuals suffering from a serious mental or physical condition that would require significant medical or detention resources; or
• Individuals with a very long-term presence in the United States, has an immediate family member who is a United States citizen, and has established compelling ties and made compelling contributions to the United States.

So that is the good news.  Here is the bad news:

Your case will be considered an "enforcement priority" and will be pursued in an accelerated manner if you:

• Have a conviction who have a conviction involving:
  
  • a felony or multiple misdemeanors, 
  • illegal entry, 
  • re-entry, or immigration fraud, 
  • a misdemeanor violation involving: violence, threats, or assault, sexual abuse or exploitation, driving under the influence of alcohol or drugs, flight from the scene of an accident, drug distribution or trafficking, or other significant threat to public safety;
• Entered the country illegally or violated the terms of your admission within the last three years;
• Have previously been removed from the country;
• Have been found by an immigration officer or immigration judge to have committed an immigration fraud;
• Have an egregious record of immigration violations;
• Are a gang member, human rights violator, or other clear threat to public safety; or
• Are a suspected terrorist or national security risk.

Or in basic terms, pretty much everyone subject to the institution of removal proceedings will have their case fast-tracked for deportation.

Now of course there is a disclaimer:

As there is no right to the favorable exercise of discretion by the agency, nothing in this guidance should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE, CBP, or USCIS or any of their respective personnel to enforce Federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

In basic terms, this means that the memorandum is not binding, is not enforceable, and is subject to change or revocation at anytime.

I'm as skeptical as I ever have been that this is nothing more than a public relations move and is being done to placate immigration reform activists that are threatening to stay home next November.

We shall see.