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Gay Couple Spared Pain of Deportation Thanks to Prosecutorial Discretion

Mike Corradini, JD on January 9, 2012

When the Obama administration announced that it would encourage the use of prosecutorial discretion to determine which undocumented immigrants should be targeted for deportation, immigrants and advocates were cautiously optimistic.

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

The prosecutorial discretion policy, under which officers and lawyers within US Immigration and Customs Enforcement (ICE) were given the power to either suspend or decline to initiate deportation proceedings against immigrants with insignificant criminal records and deep ties to the US, has the potential to spare hundreds of thousands of people the pain and suffering caused by deportation.

Now, as the first batch of cases to be considered for prosecutorial discretion are making their way through the system, both the benefits of the policy and the challenges to implementing it are coming into focus.

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

Because the 1996 Defense of Marriage Act bars same-sex couples like Makk and Wells from receiving the same benefits as married opposite-sex couples, Makk was not eligible to apply for permanent residency in the US as a result of his legal marriage to Wells. In this case, prosecutorial discretion will spare a truly deserving family the pain of an unnecessary separation.

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

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

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

Places: United States