Challenging Discrimination Against Gays and
Lesbians in U.S. Immigration Law
by Lavi S. Soloway
former national coordinator, Immigration Equality
Until 1991, homosexuality was a grounds for exclusion from admission to the United States under section 212(a)(4) of the Immigration and Nationality Act of 1965. Before the implementation of the Immigration Act of 1990, this law provided for the exclusion of gays and lesbians as sexual deviants. The Immigration Act of 1990 eliminated sexual deviancy as a ground of exclusion, therefore gays and lesbians may no longer be barred from admission to the United States on this basis.
Winning the battle for the repeal of the “homosexual exclusion” presented a unique opportunity for activists in the immigration and gay and lesbian communities. Over the years, Lambda Legal Defense and Education Fund had fielded hundreds of calls from gay and lesbian citizens whose partners were foreign nationals. Over and over, couples explained their difficulties, trying to remain together, despite the immigration laws which refused to recognize their relationships. In 1992, Lambda Legal and the International Gay and Lesbian Association joined together to create the Lesbian and Gay Immigration Rights Task Force (LGIRTF) [now known as Immigration Equality] to address the discriminatory impact of U.S. immigration law on gays and lesbians and to challenge the discrimination against gay and lesbian immigrants.
One of the purported humanitarian purposes of immigration policy is the unification of families. Accordingly, U.S. immigration law facilitates the immigration of spouses of U.S. citizens and permanent residents. However, nowhere in U.S. immigration law are there any provisions for gay and lesbian couples in “binational” relationships. Since they cannot legally marry, and since the law provides no avenue for a U.S. citizen or permanent resident to petition for his/her same-sex partner, binational gay and lesbian couples are torn apart, their lives routinely disrupted and their relationships destroyed. Often, a partner residing abroad cannot even obtain a visa to travel to the United States for a temporary visit.
LGIRTF began meeting in 1993 in New York City. The organization addressed the problems facing gay and lesbian couples as the primary area of discrimination against gays and lesbians in immigration. Through our monthly meetings we created a forum for discussion, information and support with the help of interested attorneys and activists. From the beginning this group was formed by and for the men and women who wanted to challenge this injustice. By 1994, hundreds of couples had contacted LGIRTF and got involved in our many levels of outreach. We established a free walk-in legal clinic and published regular reports of the activities of our committees.
From its inception, LGIRTF looked at the experiences of its members as its richest resource. Recognizing that immigration issues were rarely discussed within the gay and lesbian or immigration communities, we encouraged members to document the effect that immigration discrimination has had on their lives by launching a “National Story Collection Drive.” By collecting the personal stories of our members, we had a powerful tool with which to represent our issues, empowering ourselves and expanding our outreach efforts in the process. We also continued to learn about other ways in which immigration law discriminates against gays and lesbians.
The immigration ban on persons with HIV was another area of invidious discrimination. The purported public health justifications for the HIV ban were seen by many as a transparent cover for a policy motivated by both racism and homophobia. The policy was denounced by leading public health officials, immigration and human rights activists. Despite the virulence of its rhetoric in favor of the ban, a small victory was achieved in the extension of a waiver for some would-be immigrants. This waiver allows persons with HIV to immigrate to the U.S. if they had a qualifying relationship, i.e., a U.S. citizen or permanent resident spouse, parent or child, and if the applicant can prove they are not likely to become a public charge. Once again, gay and lesbian immigrants, least likely to have such qualifying relationships, were excluded from the waiver provision. While the law allowed for a waiver for the HIV+ spouse of a U.S. citizen, the waiver is not extended to the same-sex partners of U.S. citizens.
Perhaps the most pervasive of all issues to arise through our documentation of personal stories was that of persecution. Many gay and lesbian immigrants are really refugees, fleeing persecution on the basis of sexual orientation in their country of origin. In many countries, men and women are routinely subjected to brutalizing physical and psychological abuse simply for being gay or lesbian. In some countries, the death penalty is imposed on those whose sexual orientation is discovered. Upon reaching the United States, gays and lesbians report that they had been thrown out of their jobs and their homes, victimized, harassed, blackmailed, beaten or raped, often by law enforcement which is charged with their protection. In 1994, Janet Reno decreed that gays and lesbians qualified as a particular social group for the purposes of U.S. asylum law. Since that announcement, about two dozen gay men and lesbians have filed for asylum and won based on a well-founded fear of persecution based on sexual orientation.
Gay and lesbian immigrants and their partners are faced with a unique challenge to address their invisibility in the law. Same-sex partners of U.S. citizens and permanent residents are sometimes faced with the prospect of deportation because of the absence of legal recognition of gay and lesbian relationships. With the formation of LGIRTF, feelings of frustration and helplessness have been channeled into a productive vein. Since our independent incorporation as a non-profit late in 1994, we have established chapters in ten cities outside of our New York headquarters (Boston, Chicago, Cincinnati, Columbus, Los Angeles, San Diego, San Francisco, St. Louis, Seattle, Washington, DC) Over 2000 people receive our bimonthly newsletter, which tracks developments in immigration law as it affects gays and lesbians around the world. Chapters around the country sponsor legal clinics, conduct outreach efforts, broaden coalitions working on these and other issues and above all, raise awareness of gay and lesbian immigration issues.
In 1996, LGIRTF will publish a booklet on immigration law as it affects gays and lesbians, designed to answer the most commonly asked questions. Work is also underway for the publication of a comprehensive “Briefing Book.” This publication argues for the recognition of gay and lesbian couples in immigration law by framing the discussion around personal testimonies of gay and lesbian immigrants and by examining the models of the seven countries which allow same-sex partners to immigrate.
Lavi Soloway is an immigration attorney and a partner at Masliah & Soloway, an immigration law firm that specializes in LGBT immigration issues. He is co-author of “Preparing Sexual Orientation-Based Asylum Claims: A Handbook for Advocates and Asylum Seekers,” and of the “Permanent Partners Immigration Act.”
Immigration Equality - National Headquarters
[was known as the Lesbian & Gay Immigration Rights Task Force]
350 West 31 St., #505, New York, NY 10001
212-714-2904 x25; fax 212-714-2973; email@example.com