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Obama Administration has Favorably Exercised Prosecutorial Discretion in Only One Deportation Case involving Same Sex Spouses

Published: Dec 8, 2011 9:45 am

The DOMA Project has reported that nationwide there has only been one case where the Obama administration has favorably exercised prosecutorial discretion in favor of an individual in a same sex marriage facing deportation.  On November 30, 2001, Immigration Judge Terry Bain signed the order of dismissal.  Monica Alcota, born in Argentina, received a temporary reprieve for her and her United States citizen spouse Cristina Ojeda.  It should be noted that unless Judge Bain dismissed proceedings with prejudice to the Department, charges may be re-instituted at any time. 

It is unsurprising that Judge Bain granted the motion, as TRAC Immigration statistics reveal she is one of the most immigrant friendly judges in the country on the issue of asylum granting 90.4% of all cases between 2001 through 2006.  There are no Judges nationwide with a more favorable asylum grant rate during the same period.  It does not appear that Ms. Alcota was applying for asylum, however, but in my experience an immigration judge's grant rates on asylum are a reliable barometer on how they will rule on other forms of relief from removal.

What I find most telling is the fact that this is the first reported case where the Department has moved to dismiss a case involving a same sex marriage.  It is also unsurprising that this case warrented favorable consideration due to the fact that Cristina and Monica have been waging a high-profile battle against the Defense of Marriage Act (DOMA), and her deportation proceedings have garned national attention.  This is a repeating pattern of this administration.  High profile cases that have received media coverage are given high priority, while the vast invisible majority of individuals facing deportation are left out in the cold.

I have a number of current cases dealing with this very issue, and in every instance the Department has declined to favorably exercise prosecutorial discretion by enforcing the mandate of DOMA, and advancing the charges of removability. It should be noted that the Obama administration's recent prosecutorial discretion memorandum specifically excludes same sex spouses from consideration.

So the question becomes, will this be the first case in a reoccurring pattern, or will it be the exception to the rule that the Obama re-election campaign carts out for public relations purposes. 

I predict the latter.

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