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New Prosecutorial Discretion Memo Regarding Family Relationships

In October 2012, executives from ICE (Immigration Customs and Enforcement) released a memo to all Field Office Directors and Chief Counsel, as well as Special Agents in Charge regarding the Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships. The memo is significant in that follows up on the June 2011 Morton Memo regarding Prosecutorial Discretion and clarifies the scope and ambit of the “family relationship” factor, which hereto now, have not been explicitly addressed. The Memo now makes clear that family relationship encompasses same-sex partners in committed long-term relationships. These individuals:

• “Are each other’s sole domestic partner and intend to remain so indefinitely;

• Are not in a martial or other domestic relationship with anyone else; and

• Typically maintain a common residence and share financial obligations and assets.”

Being in such a relationship by itself does not lead to a grant of prosecutorial discretion. Moreover, “family relationships may be outweighed by criminal history, prior immigration violations, or other indicia than an individual meets ICE enforcement priorities.” However, as a part of a person’s ties to the community, it is an allowable factor that may be considered under the totality of circumstances in determining whether to defer or forgo proceedings against an alien.