ICE Issues San Franciscan Gay Spouse Two-Year Stay in Deportation
January 10- Following a recent shift in immigration policy that has prioritized the deportation of high-risk criminal immigrants and has allowed many low-risk immigrants in removal proceedings to remain in the country, Immigrations Customs Enforcement granted John Makk, a San Francisco man married to his partner Bradford Wells, immigration relief through a two-year stay of deportation last Wednesday. Because same-sex couples are barred from receiving federal marital benefits under the 1996 Defense of Marriage Act, Wells, a U.S. citizen, was not able to petition for legal permanent residence for his spouse Makk based on marriage. As Makk was ultimately placed in deportation proceedings, the couple’s plight drew international media scrutiny and public support, including interventions from House Minority Leader Nancy Pelosi and CA Senator Dianne Feinstein.
ICE’s issuance of “deferred action” for Makk reflects the agency’s decision to follow recent directives, outlined in the Morton Memorandum released by ICE Director John Morton in June, to exercise prosecutorial discretion in cases of extreme hardship and in which the immigrant does not pose a threat to public safety and national security. Facing an overburdened immigration case load and limited resources to carry out prosecutions for the over 300,000 immigrants currently in deportation proceedings, the use of prosecutorial discretion allows immigration authorities to focus on the deportation of high-risk criminals.
Under the guidelines outlined by the Morton memo, Makk’s case met many of the factors warranting the use of prosecutorial discretion. He has no criminal history and his record is clean of any immigration violations. His committed marriage to a U.S. citizen also made for a compelling argument that the separation of the couple would have resulted in “extreme hardship.” In addition, Makk also serves as the primary caregiver for Wells, who suffers from poor health due to an AIDS-related ailment. That a mass support base of high-ranking officials and activists intervened in the couple’s case may have also contributed to ICE’s favorable exercise of prosecutorial discretion.
With the exception that Makk is eligible to apply for work authorization, his immigration victory does not confer additional positive benefits, including the right to apply for permanent legal residence through marriage. As immigration advocacy groups have stressed, because immigration authorities may reopen a deferred immigration case at any time, the exercise of prosecutorial discretion falls short of realizing immigrants’ full integration into society. Makk’s deferral will expire in two years, but he can petition to renew it.
ICE’s issuance of “deferred action” for Makk reflects the agency’s decision to follow recent directives, outlined in the Morton Memorandum released by ICE Director John Morton in June, to exercise prosecutorial discretion in cases of extreme hardship and in which the immigrant does not pose a threat to public safety and national security. Facing an overburdened immigration case load and limited resources to carry out prosecutions for the over 300,000 immigrants currently in deportation proceedings, the use of prosecutorial discretion allows immigration authorities to focus on the deportation of high-risk criminals.
Under the guidelines outlined by the Morton memo, Makk’s case met many of the factors warranting the use of prosecutorial discretion. He has no criminal history and his record is clean of any immigration violations. His committed marriage to a U.S. citizen also made for a compelling argument that the separation of the couple would have resulted in “extreme hardship.” In addition, Makk also serves as the primary caregiver for Wells, who suffers from poor health due to an AIDS-related ailment. That a mass support base of high-ranking officials and activists intervened in the couple’s case may have also contributed to ICE’s favorable exercise of prosecutorial discretion.
With the exception that Makk is eligible to apply for work authorization, his immigration victory does not confer additional positive benefits, including the right to apply for permanent legal residence through marriage. As immigration advocacy groups have stressed, because immigration authorities may reopen a deferred immigration case at any time, the exercise of prosecutorial discretion falls short of realizing immigrants’ full integration into society. Makk’s deferral will expire in two years, but he can petition to renew it.
