U.S. Immigration Law: Denying the Value of Gay and Lesbian Families
By Scott C. Titshaw
Single heterosexuals throughout the United States were ignored yet again in the 2000 presidential election campaign. As in every national election since at least 1980, neither major political party spent much time addressing individuals outside traditional family units, focusing instead on "family values" or "what's good for working families." At least for the moment, the centuries-old Western political focus on individuals appears to be blurring behind this "focus on the family" (the name of one particular anti-gay lobbying organization). This shifting focus devalues the political interests of all single Americans, but it is even worse for gay, lesbian, bisexual, and transgendered (GLBT) families. By focusing law on the family unit while refusing to recognize GLBT families, our policymakers are making such families invisible before the law.
Family unification has long been one of the most important goals of U.S. immigration law and policy-more than 70 percent of Green Cards are issued each year on family unity grounds.
Given this emphasis on family, it is not surprising that our country discriminates more harshly against same-sex couples in the area of immigration than it does in almost any other area of the law.
If a U.S. citizen and a foreign national of the opposite sex get married, their newfound relationship allows the foreign national to apply right away for a Green Card (designating the very highest level of U.S. immigration status, short of citizenship), even if the foreign spouse is in the country illegally (which would otherwise result in a three- or ten-year bar to any immigration benefit). Gay same-sex partners, on the other hand, are viewed as "strangers" before the law no matter how many years they have dedicated to building a home and life together. A gay foreign national who remains out of status (illegal) for one year in the U.S. would be unable to legalize his status; he would also be subject to deportation and a ten-year bar to re-entering the country.
U.S. law leaves bi-national same-sex couples with several options, none of them desirable. Two are legal options: the couple can either split up, or the U.S. citizen must be willing to move abroad to live a life in exile with the foreign national partner. Other options would require the couple to break the law: the couple could live underground, or the gay foreign national could commit marriage fraud by marrying a U.S. citizen of the opposite sex in a "sham" ceremony.
The Gay '90s: Getting Rid of the Gay Bar and Other Recent Advances
Until 1991, United States law explicitly barred all immigration benefits to gay and lesbian individuals, citing "psychopathic inferiority" or "mental defect." Finally, in 1991, eighteen years after the American Psychiatric Association removed homosexuality from its list of mental disorders, Congress began to catch up with the rest of the world. (The U.S. was the last industrialized country to amend its complete bar on homosexual immigration.) It finally removed the express bar on U.S. visits and immigration by GLBT foreign nationals in (Immigration Act of 1990, Pub. L. No. 101-649). Some criminal sex offenses, including "solicitation of sodomy," may still allow denial of immigration benefits due to lack of "good moral character"; they may even constitute Crimes Involving Moral Turpitude-grounds for deportation. However, INS and the State Department are no longer authorized to consider GLBT status, in itself, a bar to U.S. immigration benefits.During the last six years, two significant steps were taken toward full recognition of GLBT persecution as a basis for asylum in the United States. In 1994 Matter of Toboso-Alfonso (20 I&N Dec. 819, 1990 WL 547189 (BIA 1990)) became a precedent for all INS decision makers, recognizing homosexuals as members of "a particular social group" under asylum law. The Ninth Circuit extended this definition to recognize asylum claims by some transgendered individuals (gay men with female identities). (Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).)
Finally, in 1993, both INS and the State Department began to recognize long-term same-sex relationships between foreign nationals in approving temporary nonimmigrant B-2 visas, for example, work permits, for dependent partners. This limited benefit does not help the "derivative" partner obtain a Green Card and remain permanently in the United States. In fact, it could even complicate the "derivative" foreign national's chances of remaining in the U.S. to study or work temporarily if the partner begins to pursue a Green Card.
It is clear that the advances in U.S. immigration fairness over the last decade have been very significant. However, they are just a first step. U.S. immigration law often still forces a U.S. citizen to choose between living a life in exile abroad or breaking the laws of the United States to stay here with a foreign national same-sex partner.
Denial of Recognition of Bi-National Same-Sex Relationships
Current discrimination against GLBT individuals is due to these families' invisibility within the legal/political focus on the heterosexual family unit. With exceptions such as the general exclusion of HIV-positive men and women and residual issues with regard to "good moral character" and certain criminalized sexual behavior, all major issues of discrimination against GLBT men and women under U.S. immigration law are now based on the denial of same-sex relationships.Every branch of the federal government and some state governments have proactively weighed in to emphasize that they will not recognize "gay marriage" under any circumstances. Adams v. Howerton (673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982)) involved a male couple who were issued a marriage license in Colorado and applied for Green Card status for the foreign national. The controversy eventually involved the state attorney general, DOJ, and the Ninth Circuit, which asserted such a relationship was not recognized under immigration law regardless of the state's opinion. ln 1996, both houses of Congress passed and President Clinton signed the Defense of Marriage Act (DOMA), proactively refusing to recognize same-sex "marriage." It is therefore exceedingly clear that bi-national same-sex relationships will not be recognized under current immigration law.
Strangers Before the Law
It is clear that same-sex relationships between U.S. citizens and foreign nationals are generally not recognized for permanent immigration purposes. This results in fundamentally unfair consequences to these bi-national couples who are viewed by INS and the State Department as "strangers" before the law. Given its heavy emphasis on family unity, U.S. immigration law offers many generous immigration benefits to spouses of both U.S. citizens and foreign nationals, including eligibility for marriage-based Green Cards regardless of current immigration status and for fiancé(e) visas to enter the U.S. specifically to marry a U.S. citizen. Recognized bi-national marriages also are eligible for special exceptions to general immigration bars for foreign nationals who have been out of status; for those who are HIV-positive; and for those with criminal convictions, or other grounds of removability. However none of these generally applicable "special rights" are available to same-sex partners, no matter how well-established their relationships.Having a U.S. spouse or other "immediate relative" is extremely important to an HIV-positive foreign national seeking a visa or Green Card. Not only is an "immediate relative" petition a common basis for obtaining a Green Card, but the hardship of separation to a recognized "immediate relative" is often the only grounds for a waiver of the general bar to HIV-positive individuals entering the U.S. Given the lack of legal recognition of gay and lesbian relationships, it is clearly less likely that HIV-positive gay men and lesbians have legally recognizable "immediate relatives" such as children or a spouse, making it impossible for most of these foreign nationals to obtain an HIV waiver.
The "Permanent Partners" Immigration Bill
For those who understand that refusing to recognize same-sex relationships under U.S. immigration law is innately unfair, there is some hope. Thanks to U.S. Congressman Jerrold Nadler (D-NY), the Lesbian and Gay Immigration Task Force, and at least fifty-seven co-sponsors in the House of Representatives, legislation to recognize some same-sex "permanent partnerships" for immigration purposes is finally being taken seriously. In fact, Vice President Gore expressed his support for such benefits during the recent presidential campaign. However, there will be an uphill battle to get this legislation passed into law.A Long and Winding Road
Although there have been some positive steps forward, there are still few or no legal immigration options for many GLBT individuals and families. Sadly, many bi-national couples end up being forced to leave the United States in favor of one of the many countries in the world that provide immigration benefits to same-sex couples, such as Canada, the United Kingdom, Belgium, Denmark, Sweden, Norway, Finland, Ireland, France, the Netherlands, Israel, Australia, New Zealand, and South Africa. It is clear, especially in the current era of government emphasis on the family unit over individual rights, that only legal recognition of GLBT families in the immigration law can alleviate the horribly unfair system that currently exists. This recognition is necessary to protect one of our most important constitutional rights, equal protection under the law for all U.S. citizens.
Scott C. Titshaw is a lawyer with the immigration practice group of Arnall Golden & Gregory, LLP, in Atlanta, Georgia. He currently serves as vice president/president-elect of the Stonewall Bar Association of Georgia, a bar association of GLBT and GLBT-supportive legal professionals.
