Immigration Reform and LGBT Discrimination

2007-04-11

Immigration Reform and LGBT Discrimination

by Charlsie Dewey

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.

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