This was the clarification issued Thursday,June 13, by Virginia Kice, U.S. ICE Western Regional Communications Director and Spokesperson, in a phone call to this reporter.
When asked if Ms. Gaerlan can stay in the U.S., Ms. Kice said, Ms. Gaerlan is free what she wants to do, as “she has no pending legal action with us as we already cancelled the voluntary departure.”
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.
But news reports said Gaerlan signed the “voluntary departure,” which was set at 4:25 p.m. on Sunday, June 16.
Unlike deportation, where the U.S. government spends for the undocumented immigrant’s departure’s transportation, in a voluntary departure, it is the undocumented immigrant, who will spend for his/her own transportation expenses back to their original destination.
RESPONSE MAY BE IN ANY PARTICULAR FORM
But one difference is that someone deported may not be allowed back to the U.S. soil while someone with “voluntary departure” may come back to the U.S. after three or ten years.
Among the features of a memorandum issued by ICE Director John Morton says its agents may exercise prosecutorial discretion when “the person has a U.S. citizen or permanent resident spouse, child or parent.” This requirement applies to 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 only its prosecutorial discretion on Gaerlan after “(f)riends, 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 to the media 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, it was a concerned relative, who called the police and arrested Gaerlan.
Police later notified ICE about the arrest of Gaerlan under the program, Secure Communities. ICE placed her on an immigration “hold.”
It was reported that because she was “falsely” told by ICE agents that she could be back in the U.S. after “two months” after her departure from the U.S., she signed the “voluntary departure.”