Pascale Fusshoeller, an undocumented journalist from Luxembourg facing deportation after allegedly impersonating her wife during a Nevada City traffic stop last week, was released by immigration officials in Sacramento on Tuesday morning.
“They told me I was released on PD (prosecutorial discretion) and I still have to get my immigration stuff in order and send my marriage papers in,” Fusshoeller said after hugging her teary-eyed wife, Susan Levitz. “I’m immensely glad to be out, I can actually look around and see people. I’m still afraid – I haven’t had a cigarette or coffee, my two major food groups, for eight days.”
Prosecutorial discretion means the federal government can choose not to hold or immediately deport an undocumented immigrant based on a variety of factors, including length of stay in the United States, lack of criminal record and whether a person is likely to be granted legal status or relief from removal because they’re related to a U.S. citizen, according to a 2011 directive by former U.S. Immigration and Customs Enforcement director John Morton.
The Nevada City couple married in Nevada County on July 22, 15 years after they fell in love and less than a month after a U.S. Supreme Court action led to same-sex marriages resuming in California. Fusshoeller, a Luxembourg citizen, had entered the United States on the visa waiver program, which allows foreign visitors to enter the United States without a visa as long as they agree to leave within 90 days.
Fusshoeller and Levitz have received awards and commendations for their website, YubaNet, used by radio stations, law enforcement agencies and private citizens for the latest news on wildfires that often flare in the Sierra foothills in the summer.
On Oct. 8, Fusshoeller was pulled over by the California Highway Patrol, accused of rolling through a stop sign near North Bloomfield Road and Highway 49. In addition to the traffic infraction, she was booked on suspicion of giving false information to police, driving without a license, resisting arrest and false impersonation. The last allegation is a felony, and the Nevada County Sheriff’s Office t advises immigration officials whenever an undocumented resident commits such a crime, according to sheriff’s Capt. Jeff Pettitt. She has not been charged with any crimes.
Gov. Jerry Brown recently signed legislation allowing local law enforcement to notify the federal Immigration and Customs Enforcement only in cases involving serious criminal acts, but Assembly Bill 4 does not take effect until Jan. 1.
ICE took Fusshoeller into federal custody last Friday and ordered her deported based on the visa waiver she signed forfeiting her rights “to contest any action for deportation except to apply for asylum,” according to the deportation order signed by Mike Vaughn, assistant field director for ICE in Sacramento.
ICE officials were unavailable for comment because of the federal shutdown.
“Today was a great day for her,” said Tom Johnson, Fusshoeller’s criminal lawyer. “It shows that there is still some mercy in the American system of justice and we’re going to take this case and turn it into something great for her.”
After the federal government sends her a formal declaration of intent to deport her, “then we actually get to litigate the immigration case,” Johnson said. “The visa waiver is going to be a key point in litigation, but secondly, the court is going to look at the impact of deportation on an American citizen, Susan Levitz.”
Fusshoeller’s arrest “was an absolute shock,” Levitz said. “For all this time that we’ve been together, this was our worst nightmare, the situation that we dreaded most, coming from a dumb traffic stop.” The couple had been working as fast as they could to file their immigration papers based on their marriage, Levitz said. “We’re bowled over by the government’s decision to release her and we’re looking forward to getting her citizenship established.”
The long-term implications of prosecutorial discretion are unclear, said Fusshoeller’s immigration attorney, James Byrne. “It normally means they’ve opted not to prosecute her, but the government still has a removal order – they could withdraw the order of removal.”
Kevin Johnson, dean of the UC Davis School of Law, said even though Fusshoeller is still vulnerable to deportation because she overstayed her 90 days on the visa waiver, “as long she doesn’t commit another crime of any kind, she’s probably going to be OK. The Obama administration is basically saying, ‘For now, we’re not going after you.’ It’s not surprising because she hasn’t been charged with a crime, she’s an upstanding member of the community and there’s no good reason for the government to expend its prosecutorial resources to try to deport her.”
Fusshoeller’s marriage could take some time to process and legalize her, and overstaying her visa waiver could be used against her, Kevin Johnson said.
“But given the way the wind is blowing on these issues right now, it would be hard for them to try to remove her and not adjust her status,” he said. “The last thing the administration wants is bad publicity from California.”