The legal system has been filled with numerous sensitive issues. Two hot spots have been same-sex marriage and immigration.
The landmark 5-4 Supreme Court ruling requires that same-sex couples be allowed to marry no matter where they live:
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
What are the implications of this ruling for undocumented immigrants?
A little background from the Immigrant Legal Resource Center:
LGBTQ Immigration: Ensuring Equality for All, February 2015
History and Background of LGBTQ Immigration
Historically, U.S. immigration law has long discriminated against gays and lesbians, who have only been able to lawfully immigrate to the United States for the last 25 years. The Immigration Act of 1917 excluded gay and lesbian individuals from immigration into the U.S. by denying admission to individuals who were found to be “mentally defective” or who had a “constitutional psychopathic inferiority,” which the then Immigration and Naturalization Service (INS) interpreted to include gays and lesbians, in accordance to a U.S. Public Health Service a definition for “homosexual.”2 The then Immigration and Nationality Act (INA) of 1952 continued this exclusion by denying admission to “aliens afflicted with a psychopathic personality, epilepsy, or a mental defect,” which the U.S. Supreme Court interpreted to include gays and lesbians as well.3
This discriminatory law was then amended in 1965 to add “sexual deviation” as a health-related ground of exclusion for which an individual could be denied admission into the U.S.4 Therefore, if a U.S. Public Health Service (PHS) official determined that an immigrant applicant for admission was gay, it would issue a certificate reflecting its findings, which would then be sent to the then INS and used as the basis for exclusion of the individual. In 1979, six years after the American Psychiatric Association had removed “homosexuality” from its list of mental illnesses,5 the Surgeon General ordered the U.S. Public Health Service to stop issuing medical certificates solely because an alien was suspected of being gay.6
However, the Justice Department directed the then INS to continue to enforce the law’s exclusionary provisions against gays and lesbians; and in 1980, the then INS adopted its “Guidelines and Procedures for the Inspection of Aliens Who Are Suspected of Being Homosexual.” Although individuals seeking admission into the U.S. were not to be asked questions regarding their sexual orientation, if an individual or a third party made a voluntary statement identifying an immigrant applicant as a “homosexual,” an investigation would be conducted and the INS could refer the person to exclusion proceedings.7 It wasn’t until the Immigration Act of 1990 that Congress finally removed the words “sexual deviation” from the INA. That same year, in the case of Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), the Board of Immigration Appeals (BIA) granted withholding of deportation to a gay Cuban man based on his membership in the particular social group of “homosexuals.”
Nevertheless, between 1993 and 2010, the Department of Health and Human Services (HHS) designated HIV as a “communicable diseases of public health significance” that made a person inadmissible to the U.S. under the health-related grounds of inadmissibility.8 The so-called “HIV ban” particularly prevented gay men from visiting or immigrating to the U.S. during the years it was in place. Before the ban was lifted, LGBT advocates raised the concern that the HIV ban discouraged some LGBT foreign nationals already living in the United States from seeking testing and medical care in connection with HIV because of the possible risks involving their immigration status, in addition to the stigma that the ban promoted.9 In 2010, under President Obama, HHS finally removed HIV from the list of inadmissible communicable diseases, following the enactment in 2008 of the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act, pursuant to which HHS was no longer required to so designate the disease.
Finally, same-sex couples were denied immigration benefits based on marriage until 2013, when the Supreme Court declared unconstitutional the Defense of Marriage Act (DOMA) in the case of United States v. Windsor, 133 S.Ct. 2675 (2013); and until 2012, transgender immigrants were required to prove that they had undergone sex reassignment surgery in order for the U.S. Citizenship and Immigration Services (USCIS) to recognize their gender transition by reflecting their correct gender marker on official documents.10
- To learn more about the UndocuQueer Movement, see Erika L. Sanchez, NBC Latino, “The UndocuQueer movement rises to push for a DREAM Act.” November 2, 2012; and Elena Shore, New America Media, “Who Are the ‘UndocuQueer?’ New Reports Shed Light.” March 8, 2013.
- Davis, Tracy J. “Opening the Doors of Immigration: Sexual Orientation and Asylum in the United States.” Human Rights Brief 6, no. 3 (1999), pg. 19-20.
- Boutilier v. INS, 387 U.S. 118 (1967)(finding that the term “psychopathic personality” was intended to include “homosexuality,” to which it mainly refers as a behavior or conduct).
- 8 USC Sec. 1182(a) (1982).
- Note that the Diagnostic and Statistical Manual of Mental Disorders (DSM), removed the term “homosexuality” from its list of mental disorders, but it replaced it by the category “Sexual Orientation Disturbance.”
- 56 Interpreter Releases 387, 398 (1979), cited in Hill v. INS, 714 F.2d 1470 (9th Cir. 1983).
- For a brief summary of this history, see Hill v. INS, 714 F.2d 1470 (9th Cir. 1983).
- See 42 CFR § 34.2(b) and INA § 212(a)(1)(A).
- Julia Preston, “Obama Lifts a Ban on Entry Into U.S. by H.I.V.-Positive People,” The New York Times, October 30, 2009.
- See USCIS Policy Memorandum, “Adjudication of Immigration Benefits for Transgender Individuals; Addition of Adjudicator’s Field Manual (AFM) Subchapter 10.22 and Revisions to AFM Subchapter 21.3 (AFM Update ADT-12-02)” April 10 2012, included in this manual as Appendix B.
Gay couples in states where same-sex marriage was not legal and lived in fear of immigration laws that could tear them apart, will now be eligible to seek protections afforded to opposite-sex couples.
There are approximately 267,000 LGBT-identified individuals among the adult undocumented immigrant population and an estimated 637,000 LGBT-identified individuals among the adult documented immigrant population. The report finds that approximately 71 percent of undocumented LGBT adults are Hispanic and 15 percent of undocumented LGBT adults are Asian or Pacific Islander.
Here are statistics pertaining to adult undocumented immigrants:
- There are an estimated 267,000 LGBT-identified individuals among the adult undocumented immigrant population, approximately 2.7 percent.
- Relative to all undocumented immigrants, LGBT undocumented immigrants are more likely to be male and are younger.
- 71 percent of undocumented LGBT adults are Hispanic.
- 15 percent of undocumented LGBT adults are Asian or Pacific Islander.
For many undocumented immigrants who live in the shadows, and doubly so because of being both LGBTQ and undocumented, they will now be able to breathe a little more easily.
Can you imagine what it must be like, living every day of your life in a “double closet”, in fear?
In New York where same-sex marriages have been legal for several years (see: http://www.nytimes.com/2011/06/25/nyregion/gay-marriage-approved-by-new-york-senate.html), the fate of undocumented couples seeking relief from removal has reached immigration courts.
The law will make it easier for same-sex couples to sponsor their foreign spouse, and to adopt and thus be a second parent to the spouse’s child. This too will open a pathway of relief as the adopted American child will be a qualifying relative for immigration purposes.
Cancellation of removal involves the following criteria:
- Must prove unlawful presence in the United States for a minimum of ten years prior to the service of the Notice to Appear.
- Must not have committed any aggravated felonies.
- Must show exceptional and extremely unusual hardship to a US citizen spouse, parent or child.
Assuming the first two prongs are met, the third prong is far from a cake-walk and is a very tough barrier to overcome.
The standard in removal cases is: Exceptionally and Extremely Unusual Hardship.
Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001)
Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002)
Matter of Andazola, 23 I&N Dec. 319, 323-324 (BIA 2002)
How can you analogize your case with Recinas (cancellation of removal was granted) and distinguish it from Monreal and Andazola (cancellation of removal was denied)?
The removal standard poses a very high burden to meet and cases require careful attention to many details.
It also is essential to know the culture/situation of the country of origin very well.
There are many sources where this information is available.
Another possible avenue of relief is afforded to U-visa applicants:
U-visa applicants may include their family members in their application therein allowing them to remain together.
USCIS sets aside the U-visa for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity.
Qualifying criminal activity is defined as being an activity involving one or more activities that violate U.S. criminal law, including:
- Abusive Sexual Contact
- Domestic Violence
- False Imprisonment
- Genital Female Mutilation
- Felonious Assault
- Involuntary Servitude
- Kidnapping Manslaughter
- Obstruction of Justice
- Sexual Assault
- Sexual Exploitation
- Slave Trader
- Witness Tampering
- Unlawful Criminal Restraint
- Other Related Crimes
A U-visa applicant will now be able to include his or her same-sex spouse and adopted child(ren) if any in the application.
Immigration laws are extremely complex. These are some areas of relief that will be available to same-sex couples in states where same-sex marriage was not recognized. I’ve no doubt there are many other applications that will now be available to LGBTQ undocumented immigrants.