Integrity Legal

Posts Tagged ‘Bisexual Immigration Rights’

1st October 2010

Those who follow this blog frequently may take note of the fact that the administration carefully follows the issues associated with LGBT Immigration rights in the United States of America. In a recent posting by Melanie Nathan on the website LezGetReal.com it was noted that LGBT immigration legislation may be introduced in the US Congress quite soon:

Sen. Robert Menendez of New Jersey is expected to introduce comprehensive immigration legislation before the Senate adjourns this week for the midterm recess, according to Politico, and a source tells The Advocate that the legislation will be LGBT-inclusive.

In the past, there have been other attempts by Federal legislators to rectify the current legal restrictions placed on LGBT bi-national couples when it comes to the issue of obtaining US Immigration benefits. To continue to quote directly from LezGetReal.com:

There are an estimated 36,000 (minimum the number since the determination in the year 2000 – also not taking account of social media and current increase in internet meeting) Gays and Lesbians who are either American citizens or residents (all referred to as Americans for the purpose of this article,) who are in love and relationship with a foreigner. Gay and lesbians are denied equality under the Federal Immigration laws of this Country, to sponsor same-sex partners or  State recognized spouses for immigration (greencards) to the USA.

LGBT couples (and the appellation LGBT includes Bi-sexual and Transgender couples and individuals as well as Lesbian or Gay couples and individuals) are currently barred from receiving the same family based immigration benefits as different-sex couples. This restriction is imposed pursuant to the Defense of Marriage Act (DOMA). DOMA prevents same sex couples (even those lawfully married under state law) from receiving recognition of their marriage in the eyes of the Federal government (and the benefits which may arise therefrom, including immigration benefits such as the K3 visa, CR1 visa, or IR1 visa or in cases where a couple intends to enter into a marriage in the USA: a K1 visa). There are those who argue that application of DOMA violates the doctrine of States’ Rights. At the same time, others point to the violation of the civil rights of the American Citizen (or Lawful Permanent Resident) petitioners whose Constitutional rights may be being violated through continued enforcement of DOMA. That said, the issue remains a highly charged political matter, to quote further from the aforementioned website:

So here we are – a Congress that may well go into lame duck, a Congress that failed to repeal DADT, that showed no compassion for the children of the immigrant DREAM ACT – and a UAFA barely in the conscience of leadership, unknown to mainstream America and also barely in the minds of our lesbian and gay sisters and brothers. The question is are we going to be in the Menendez Bill as a pawn, a promise or yet another wedge that will render Immigration Reform impossible in this political climate.

Remember it IS the American who lacks the Equality – and is being discriminated against.  ALL Americans in committed relationships, except gays and lesbians,  have the right to remain in the USA with the person whom they love.

It is not the immigrant per se, who has the right, as immigration is a privilege afforded a foreigner; it is the American who has the right and it is indeed a Civil Right and a Human Rights issue.

The UAFA noted above is an acronym for the Uniting American Families Act, a bill that has, in different forms, been floating around the US Congress for some time. One of the major proponents of this legislation is Representative Jerrold Nadler who has repeatedly supported and introduced legislation which would give equal immigration rights to LGBT couples. It is interesting that the above cited piece brings up the issue of the American Citizen’s rights with regard to US Immigration matters. Although foreign nationals do not necessarily have the same rights under the US Constitution as Citizens there is no doubt that Americans are protected by the provisions of the Constitution. It is this authors opinion that this situation may very well be ultimately decided by the US Courts rather than the US legislature as there are currently two cases pending in two different circuits which could result in the full or partial repeal of DOMA. With regard to immigration, DOMA compels the US Federal government to restrict US family immigration benefits to different-sex couples. Notwithstanding that jurisdictions such as Massachusetts allow same sex marriage. Therefore, the Federal government may be in violation of the “Full Faith and Credit” Clause of the US Constitution by failing to provide equal immigration benefits to same sex couples married in a jurisdiction in the US where such unions are lawful.

Whether the issue of LGBT immigration rights will ultimately be resolved in the US Courts or the US Congress remains to be seen, but one thing is for sure: the issue has many implications from both a legal and political perspective.

For related information please see: Same Sex Visa.

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16th September 2010

The issue of LGBT Immigration rights for the loved ones of American citizens is an often discussed topic on this blog. This is mostly due to the fact that this issue is a pressing concern for many bi-national families and it is also an interesting and important legal issue that will likely be resolved by the Federal judicial branch of the United States of America. The provisions of the Defense of Marriage Act currently bar family visa applications for LGBT couples, even those lawfully married in a US jurisdiction which recognizes same sex marriage. There are other areas of American immigration law which touch upon this important issue. The following quote comes from Mr. Matthew J. Bajko writing on the Bay Area Reporter website:

LGBT immigrants in the United States face many hurdles to seeing their applications for asylum be granted. The first of which is a ticking clock.

Under U.S. immigration law, a person seeking asylum has one year from the first day they step foot on American soil to file their paperwork. The deadline presents quite an obstacle for many LGBT people, who either are unaware of the time limit or often have yet to grapple with or come to terms with their own sexual orientation or gender identity.

Even if an asylum seeker does get their paperwork in on time, then they face another series of challenges. Foremost is proving that they are indeed gay, lesbian, bisexual, or transgender, and if sent back to their home country, that they are likely to face persecution for being an LGBT person.

Many lack the resources to hire an immigration lawyer to represent and guide them through the process. And language barriers can further complicate matters.

Although this issue is somewhat novel in an immigration context, there are many who feel that LGBT issues will be at the forefront of certain aspects of the overall debate on Comprehensive Immigration Reform as current restrictions imposed by the Defense of Marriage Act (DOMA) have a tremendously negative impact upon bi-national same sex couples.  This author is of the opinion that the immigration restrictions imposed by DOMA are unconstitutional because they violate the doctrine of States’ Rights which is embodied in the Constitution of the United States. It would appear, that some US Courts are currently in agreement with this assertion although the issue is likely to remain unresolved until the matter is brought to appeal and the question of Federal and interstate recognition of same sex unions is answered.

In the context of asylum, the Constitutionality of DOMA and issues surrounding immigration benefits for the partners of American Citizens are less prevalent. As the aforementioned publication went on to note:

But advocates and lawyers who handle immigration cases say the issue will only grow as more people around the world come out and flee anti-gay persecution.

“There is a lot of work out there,” said Ann Lewis, an attorney in the New York office of Ropes and Gray, which was the recipient of the 2010 Safe Haven Award from Immigration Equality for its pro bono work assisting LGBT asylum seekers.

In 2009 the firm won asylum for 10 clients referred to it by Immigration Equality, more than any other law firm in the country. The asylum seekers included a lesbian from India; a gay HIV-positive Jamaican and his son; a gay HIV-positive Ghanaian; a gay Ukrainian; and a gay man from the Dominican Republic.

Lewis told the Bay Area Reporter that a key first step in a successful asylum case is to meet the one-year filing deadline. By doing so the process is friendlier than fighting a deportation, she said, and moves rather quickly. Most applicants will wait up to five weeks to be interviewed by immigration officials, and most receive an answer within two weeks, said Lewis.

“People should be aware if you file an affirmative application you are not in immigration proceedings,” said Lewis. “It is a lot less scary and adversarial than federal removal proceedings.”

This is a significant issue that warrants further explanation. Expedited removal or general removal proceedings can be a daunting experience for foreign nationals in the United States. These types of adjudications differ substantially from asylum proceedings and should not be viewed as the same type of adjudication. The article went on:

Just as important is for the asylum seeker to be as truthful as possible during their interview about the anti-gay treatment they have faced. At times, Lewis acknowledged, it is not easy for an LGBT person to recall past ill-treatment or to understand what sorts of experiences would apply to their asylum case.

“It is very painful. To make a case like this it is difficult; these people often have been closeted since early adolescence or learned to keep their feelings to themselves,” said Lewis. “We were just talking about a specific case I am working on where the young man didn’t actually think he suffered past persecution. But he had been sexually abused because he was effeminate.”

Truth is a critical factor in any immigration proceeding. Although the facts surrounding an asylum claim can be difficult for some individuals to relive as persecution of LGBT communities can be truly terrifying in some locales. That said, it is admirable and reassuring to see American attorneys, such as Ann Lewis mentioned above, taking the initiative to pursue US LGBT immigration benefits on behalf of others in an effort to provide assistance to those seeking asylum and forestall possible further persecution by governments, individuals, communities, and regimes abroad.

For further related information please see: LGBT Immigration or US Visa Thailand.

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