Immigration Reform and LGBT Discrimination

Immigration Reform and LGBT Discrimination
by Charlsie Dewey
Copyright by The Windy City Times
2007-04-11


Introduced by United States Reps. Luis Gutierrez, D-Ill., and Jeff Flake, R-Ariz., on March 22, the Security Through Regularized Immigration and a Vibrant Economy Act of 2007 ( STRIVE Act ) could be the answer to immigration reform. But, for LGBT individuals, passage of the STRIVE Act won’t change the immigration situation much.

Presently, there are three primary ways to immigrate to the U.S., family based, employment based and asylum seekers.

The Human Rights Campaign Web site reports, “Approximately 75 percent of the 1 million green cards or immigrant visas issued each year go to family members of U.S. citizens and permanent residents.”

Without the ability to marry in the U.S., same-sex partners are at a glaring disadvantage, unable to meet the requirements that would allow a U.S. citizen or permanent resident to sponsor a spouse, as is the case for opposite sex married couples.

Immigration law is controlled at the federal level, so even couples who are recognized under a state’s civil union or marriage laws are not eligible to sponsor a spouse.

“The primary mechanism, the spousal category, is completely denied to LGBT people…excluding that major class of immigrants from the United States,” said Adam Francoeur, Policy Coordinator for Immigration Equality.

Francoeur explained, that post-operative transgender individuals face a unique situation, depending on whether or not their state recognizes their marriage as an opposite sex couple, there is a chance for a transgender individual to be sponsored by a spouse.

Gutierrez said through e-mail, “I believe that families, both gay and straight, should not be ripped apart by our badly broken immigration system.”

Yet, if passed, the STRIVE Act will continue to discriminate against same-sex couples because the bill does not include language that would permit a U.S. citizen or permanent resident to sponsor his or her partner.

The bill could, however, help some LGBT individuals who have been living undocumented within the U.S. on an individual level, though not due to their sexuality. Undocumented individuals meeting specific guidelines and living in the U.S. prior to June 2006 can apply for citizenship under the STRIVE Act and become U.S. citizens or permanent residents if requirements are met.

What about all those same-sex binational partners of the future? The STRIVE Act falls short. Same-sex binational spouses of the future will still have the primary immigration opportunity shut off to them.

There is a small hope in another measure known as the Uniting American Families Act ( UAFA ) . The UAFA provides the necessary language for same-sex partners to be able to sponsor a spouse in the same way opposite sex couples can.

Gutierrez said, “I am a longtime original co-sponsor of the Uniting American Families Act. This legislation would ensure that immigration law applies the same standards to loving, committed same-sex couples that the U.S. applies to opposite-sex couples. I have vigorously supported this legislation in the past and will do so again this Congress.”

The UAFA was previously known as the Permanent Partners Immigration Act, which, when introduced in 2003, failed to garner enough support in a Republican led Congress. There is more hope for the UAFA, but many are still skeptical if the climate has changed enough for the measure to pass.

Without passage of the UAFA, same-sex couples will have to continue to seek U.S. citizenship or permanent resident status through work based or asylum cases. Neither of which are easy to obtain.

Employers can sponsor an employee for a green card, but according to Francoeur, they are less frequent and most are non-immigrant visas.

In the case of asylum, LGBT individuals from another country must be able to prove that persecution has occurred based on sexual orientation and that the country’s government cannot or will not protect the individual from further persecution.

There are many problems with the current asylum requirements, such as the fact that an individual is unlikely to win asylum through fear of persecution alone, and an individual must out himself or herself in filing, creating a greater risk for persecution.

Aurora Pineda, board co-chair of Amigas Latinas and founder of PFLAG en Espanol, talked about an incident that reflects what many asylum-seekers face. “There was a case [ concerning a man from Mexico ] where the judge made a comment—’You don’t look gay to me’—so he rejected the asylum. ... You have to prove it’s not safe for you to stay in the country you’re from, and sometimes you might not have access to the documentation or you’re afraid to file a report because, for example, within the police station in Mexico they tend to be very corrupt. I can imagine this happens across the board in any country ... It’s not as easy as people think it is.”

Presently, an important asylum case has been introduced involving Olivia Nabulwala, a lesbian from Uganda whose family, according to CNN.com, was so angry at her admission to being a lesbian that they beat her, stripped her and held her down while a stranger raped her.

In an attempt to remain in the U.S., Nabulwala petitioned for asylum and was denied by a Minnesota judge. The 8th U.S. Circuit Court of Appeals disagreed with the judge’s decision, and Nabulwala’s case is being reconsidered.

If Nabulwala wins asylum, an important aspect of her case will be having a published opinion. Rachel B. Tiven of Immigration Equality told CNN.com, “A published opinion gives it greater weight, makes it citable.” If Nabulwala does not win, she will be deported.

For many binational couples the inability for one spouse to remain in the U.S. tears the family apart and oftentimes leads to the U.S. citizen joining the spouse outside of the U.S. This can mean the loss of a vital resource here due to highly skilled individuals taking those job skills abroad. This can also create a situation where an individual is forced to choose between his or her family members or spouse by being separated from loved ones through either decision.

Under the STRIVE Act alone, LGBT families are not given equal consideration or protections. Without the UAFA or a comprehensive immigration reform bill that includes LGBT families, LGBT individuals will continue to be uprooted from their families and forced to live illegally in the U.S. if they are unwilling to separate—or they will have to find another country to call home in order to remain together.