Integrity Legal

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.

Tags: American LGBT Asylum, Ann Lewis, Bay Area Reporter, bi-national couple, Bisexual Immigration Rights, Comprehensive Immigration Reform, Gay Immigration Rights, Lesbian Immigration Rights, LGBT asylum, lgbt immigration, Matthew J. Bajko, same sex visa, Transgender Immigration Rights, US LGBT Asylum, US same sex visa
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The authors of this blog keep a close eye upon pending legislation in both the Kingdom of Thailand and the United States of America. Vigilance must be maintained in order to be fully aware of all of the current Immigration policies, procedures, rules, regulations, and laws in both countries. This blog has repeatedly reported on issues involving same-sex couples seeking United States Immigration benefits as this poses one of the most politically pressing and legally confusing issues of United States Immigration at this time.

Currently, the United States Congress is debating legislation that would attempt to tackle some of the major problems in the area of US Immigration. Recently a bill was introduced that would reform current American Immigration law with regard to refugees. Some feel that an even more pressing piece of legislation is that which would provide comprehensive immigration reform in the USA.

Same Sex Immigration issues have been dealt with in separate proposed legislation called the Uniting American Families Act (UAFA), but there are those who hope that a Comprehensive Immigration Reform bill will eventually include immigration benefits for same sex couples. A very popular website and blog, Immigration Equality.org, has been posting updates regarding the situation in Washington D.C. where marchers will be falling upon the US Capital to demand Comprehensive Immigration Reform legislation. Most notable, is the fact that among the marchers LGBT rights activists are campaigning for equal rights in the US immigration process. To quote Immigration Equality’s blog directly:

“In the midst of the tens of thousands rallying for reform, a contingent of 300 to 500 people will on hand, with rainbow flags in hand, to bring attention to the struggles of lesbian, gay, bisexual and transgender (LGBT) immigrants and their families. And before they set their first foot on the grassy lawn off Constitution Avenue, their presence is already being felt and making change.”

The blog added a personal touch to its report of this demonstration:

“[Laurie] Larson will be marching with the Immigration Equality contingent in honor of her close friend Steve – an American citizen – whose partner of nearly a decade, Joe, was recently forced to leave the country after losing his job and, by extension, his work visa, too. Had Steve been in a heterosexual relationship, he could have married his partner and they would have qualified for residency. But because Steve and Joe are both male, that option doesn’t exist for them. Under current U.S. immigration law, Steve cannot sponsor Joe for residency simply because they are gay.”

The idea that an American Citizen, who could legally marry a foreign national of the same sex in some US jurisdictions, cannot obtain a US family based visa for their same sex loved one definitely smacks of inequality where the same American could petition for visa benefits for their loved one if the loved one was of a different sex. That being said, these issues have yet to be played out and there are some who believe that the issues of same sex family based immigration will likely be dealt with in the US Courts as the Defense of Marriage Act‘s (DOMA) constitutionality is currently being challenged by the Commonwealth of Massachusetts.

For information on US Immigration in general please see: US Visa Thailand.

Tags: CIR, Comprehensive Immigration Reform, Defense of Marriage Act, DOMA, gay immigration, lgbt immigration, lgbt visa, Same Sex Immigration, uafa, Uniting American Families Act, US Gay Visa, US LGBT visa, US same sex visa, US visa same sex marriage massachusetts
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