CHICAGO – The United States Immigration and Customs Enforcement (ICE) has exercised its prosecutorial discretion in the case of undocumented Filipina Karla Gaerlan, cancelling her order of voluntary departure.
This was the clarification issued last June 13 by Virginia Kice, U.S. ICE Western Regional Communications director and spokesperson, in a phone call to this reporter.
Asked if Ms. Gaerlan can stay in the U.S., Ms. Kice said, Ms. Gaerlan is free in doing what she wants to do as “she has no pending legal action with us as we already cancelled her voluntary departure.”
Ms. Gaerlan, 28, signed a “voluntary departure agreement after she, her husband (U.S. Army Specialist Thad Schmierer) and her mother-in-law, met with ICE officers to confer, in a professional and respectful setting, options for her situation.”
The ICE statement did not elaborate.
News reports earlier stated that Ms. Gaerlan signed the “voluntary departure,” which was set at 4:25 p.m. on June 16.
Unlike deportation, where the U.S. government spends for the transportation of undocumented immigrants, in voluntary departure the undocumented immigrants will spend for their the transportation back to their original destination.
But one difference is that someone deported may not be allowed back to U.S. soil while someone with “voluntary departure” may come back to the U.S. after three or 10 years.
A memorandum issued by ICE Director John Morton states that its agents may exercise prosecutorial discretion when “the person has a U.S. citizen or permanent resident spouse, child or parent.” This applies to the case of Ms. Gaerlan, whose husband is a U.S. citizen and they have a nine-month-old child, Christopher, who was born in the U.S.
The memorandum says while “ICE may be considering whether to exercise discretion in the case, there is no guarantee that the agency will ultimately exercise discretion favorably. Responsive information from the alien or his or her representative need not take any particular form and can range from a simple letter or e-mail message to a memorandum with supporting attachments.”
It was reported that ICE exercised its prosecutorial discretion on Gaerlan only after “friends, community supporters and her husband, U.S. Army Specialist Schmierer, (publicly) appealed to ICE to stop her expulsion.”
Schmierer, who will be leaving for training in a week, expressed his concern that when he would be away from their home in Stockton, “my family won’t be there.”
Gaerlan’s trouble started when she had an argument with her then boyfriend (Schmierer) as she struggled with her severe post-partum depression and scratched Schmierer. While Schmierer did not bother to report her to the police as the scratch was “light, and it was a concerned relative, who called the police who arrested Gaerlan.
Police later notified ICE of the arrest of Gaerlan under the program called “Secure Communities.” ICE placed her on “immigration hold.”