The last immigration overhaul took place in 1996, and the last full legalization program was enacted by US President Ronald Reagan in 1986. To put it mildly, the comprehensive immigration reform (CIR) discussions which have at last begun in earnest are long overdue.
One of the primary issues in the CIR debate is whether the estimated 11 million undocumented immigrants should have a pathway to citizenship, and if so, what it means for them to go to the end of the "waiting line" for citizenship. The notion of an orderly line is deeply problematic, in that it implies that some aspiring Americans could have had a place in this "line" but chose not to. The reality is that most of the undocumented people in the US have no line to get into, or have been so prejudiced by harsh enforcement rules implemented under the 1996 overhaul that they cannot leave the country to process their papers for fear of not being allowed to return.
Among those for whom there has never been a "line" are lesbian and gay immigrant families. Under current US immigration law, it doesn't matter how long a lesbian or gay couple has been together, whether they are raising children together or even whether they are legally married there is currently no way for a foreign national to legalize immigration status based on a primary, same-sex relationship.
Thus, for a couple like Edwin Blesch and Tim Smulian despite turning their lives upside down to maintain their relationship and marrying in Smulian's home country of South Africa Smulian has been unable to obtain permanent lawful status in the US. When he ran out of options to maintain lawful status here, his husband sponsored him for lawful permanent residence, knowing that the application would likely be denied solely because of his sexual orientation. Although he was given a short reprieve in the form of deferred action, he fears every day that he could be torn away from the side of his husband, a US citizen who is diagnosed with AIDS.
Some may argue that there is simply no need to include lesbian, gay, bisexual and transgender (LGBT) families in CIR because if the Defense of Marriage Act (DOMA) is struck down in the summer, the immigration problems of LGBT families will be solved. However, immigration reform comes about every twenty years or more. If we sit on our hands, betting that the US Supreme Court will do the right thing and we're wrong, then families who are suffering today will have to wait another generation for Congress to take up immigration reform, or for the Supreme Court to revisit marriage equality.
That is why it was so important that President Obama included LGBT families in his principles of immigration reform and that before him, the Congressional Hispanic Caucus included LGBT families [PDF] in its principles.
Relationship recognition is not the only issue in CIR that matters to the LGBT community. LGBT individuals comprise a sizable percentage of the 11 million undocumented immigrants, and those who are not in a relationship with an American citizen have their hopes pegged to a broad legalization program just like heterosexual undocumented people. Young LGBT individuals have been a critical voice within the movement to pass the DREAM Act, and it is crucial that individuals who were brought to the US as children and have since attended school or joined the US military, have an expeditious means to legalize their status and obtain full legal status in the country they already view as their home. The activism and courage of "coming out" in this movement both as LGBT and as an undocumented immigrant is a model for all of us. It is heartening to see the DREAM Act provisions included in both the president's and the senators' principles for CIR.
One of the harshest immigration provisions enacted in 1996, was the addition of a one year filing deadline for asylum cases. At Immigration Equality, we have seen the disproportionate impact this deadline has on LGBT applicants who have no reason to know that asylum could be available to them based on their sexual orientation or gender identity. The proposal laid out by the President calls for "eliminating the existing limitations that prevent qualified individuals from applying for asylum." We are hopeful that as CIR moves forward, it eases the path for the most vulnerable aspiring citizens to obtain safe haven in the US. Likewise, we hope that once CIR provides a pathway to citizenship for many of the undocumented, that the emphasis on immigration detention will diminish, and the inhumane conditions that LGBT detainees have faced will become a thing of the past.
The LGBT immigrant community is multi-faceted and different sectors will benefit from different components of immigration reform. But, of course, the central issue affecting LGBT immigrant families is recognition of our core family relationships. Every day my organization hears from couples who are desperate to live together in the US and to start a life together out of the shadows. Too often, couples are forced to leave the US, to have long-distance relationships, to juggle visas to maintain status, or to simply fall out of status to remain together.
Even if the Supreme Court strikes down DOMA in Windsor v. United States, it is not certain that LGBT families will immediately benefit in all areas because Windsor is an as-applied challenge, which deals specifically with estate taxes. Since DOMA is a definitional statute it is hard to imagine how it could be struck down as-applied to one benefit but not another. However, we will not know until we read the final decision. Further, the Supreme Court appointed Harvard Law Professor Vicki Jackson to argue that there was no standing to appeal. If the Supreme Court finds that there was no standing, it is unclear how wide-reaching the lower court decision in Windsor would be.
Even in the best-case scenario, there are some couples who could be left behind. Because couples cannot currently marry in all states or in all countries, there may be couples who are excluded by a system that requires marriage. For example, if a gay binational Florida couple has never married, and the foreign partner was placed into immigration detention for driving without a license, he could be unable to apply for lawful permanent residence to defend against his deportation because his detention would prevent him from traveling to a marriage equality state to marry. There are myriad reasons that individuals might not be able to travel to marry including health, work, criminal justice, child care and child custody issues.
The inability to marry abroad is also a concern. For example, if a Ugandan lesbian flees the country for her life, leaving her partner behind, she cannot file an application for her partner to join her in the US until she becomes a US citizen. This extended period would be five years after winning asylum, at the earliest. If she had been able to marry her partner (almost by definition, LGBT people from asylum-producing countries will not be able to marry), she could immediately file a petition to bring her partner to the US after winning asylum herself.
This is an exciting time. It feels as though we are on the threshold of lasting change and lasting equality. But until LGBT families are able to clearly cross over the threshold and know that their relationships will be honored by the immigration service, we must continue to fight on every front for full immigration equality.
Victoria Neilson is the Legal Director of Immigration Equality.
Suggested citation: Victoria Neilson, Truly Comprehensive Immigration Reform Must Address LGBT Issues, JURIST - Hotline, Feb. 13, 2013, http://jurist.org/hotline/2013/02/victoria-neilson-lgbt-immigration.php
This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org