I just received my first response from Office of Chief Counsel regarding a request for a favorable exercise of prosecutorial discretion under the Obama administration's new deportation review policy.
My client is an asylum seeker who has been subjected to multiple instances of past persecution on account of sexual orientation, and fears future persecution if forced to return to his native country.
My client entered the United States legally; maintained lawful status for a number of years; has no adverse criminal history; is highly educated; had previously maintained lawful employment in the United States; and is currently engaged to a United States citizen. Unfortunately, the Obama administration still does not recognize same sex marriages for eligibility for immigration benefits.
I contacted Office of Chief Counsel to inquire whether they would be willing to favorably exercise prosecutorial discretion by moving to dismiss proceedings under the new deportation guidelines.
The answer was no, and that no consideration would be given.
I then asked that if dismissal was not an option if administrative closure would be considered pending a determination on the Attorney General's remand of a deportation case involving an individual in a same sex marriage.
Another flat no.
As I predicted: Business as usual for the Obama administration's deportation machine.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).