Obama Administration Fails to Help Gay Couple Bypass Discriminatory Immigration Laws
The federal government Friday denied asylum to a gay Brazilian man who married his partner in Massachusetts. The man must now stay in Brazil.
Normally, foreign citizens can become U.S. residents if their spouse is a U.S. citizen. But because of DOMA, immigration law doesn't recognize same sex marriages.
Passing on Chance to Help
The asylum application gave the federal government a chance to bypass immigration law and let the Brazilian man become a U.S. resident regardless. But Eric Holder, the U.S. Attorney General, didn't respond to the application in time, effectively denying it.
The couple even got Massachusetts Senator John Kerry to plea their case to the attorney general, which raised the couple's hopes. The Associated Press reports:
Coco [the U.S. citizen] said he thought there was ''no way'' the Obama Administration would deny Oliveira's asylum request after Kerry made his plea to Holder.
''We are profoundly sad,'' said Coco. ''This is more than any married should have to face.''
The struggle highlights the difficulty for foreigners married to U.S. citizens to become U.S. residents. Because the government won't grant marriage-based visas to same sex couples, foreign spouses generally must rely on an asylum application, the general visa lottery, an employment-based green card or visa, or a student visa.
Any hope?
The Uniting American Families Act, already introduced to the Senate and House, would let "permanent partners" of U.S. citizens beome U.S. residents. While a version of the bill has floated around since 2000, it's possible Democratic majorities in this Congress mean it will pass.
There are serious flaws or omissions from this story (though I have read longer accounts in the Boston Globe and elsewhere) and it is a shame that it has been posted virtually everywhere lacking proper context. I understand the frustration with the current administration, and I have been very critical of the lack of leadership on DOMA/UAFA, but this one is hard to present as the President's fault. Obama was not President in 2007. The Attorney General cannot declare a person living in Brazil to be an asylee. Is this sloppy reportage? Was Kerry's staff just raising hopes that would be inevitably dashed? I wish I knew the answer. I feel for these men, I really do. But who were the lawyers that represented the Brazilian man? What is Tim Coco referring to exactly when he says that he expected the Attorney General to grant his partner "asylum" two years after his case was denied? I've handled hundreds of gay asylum claims, and I am stumped by the way this is being presented. In a way, the issues of asylum and binational couples needing DOMA repeal or UAFA or CIR are being conflated and confused---though understandably. They overlap, but they deserve careful analysis which is lacking here.
As much as we need the Department of Homeland Security to order Immigration and Customs Enforcement Trial Attorneys to agree adjournments in the removal proceedings involving same-sex partners/spouses of US citizens to prevent or slow down the process by which these deportations are ordered by Immigration Judges, we need Congress to pass Uniting American Families Act, repeal DOMA, and perhaps most importantly, we need the Senate version of family re-unification immigration legislation to include gay and lesbian couples now. While it seems that most of the political establishment and punditry is (properly) focused on health insurance reform, work begun earlier in 2009 continues in earnest behind the scenes to ready bills that would tackle one of our country’s greatest catastrophes: our broken immigration system.
The Obama administration via the Department of Justice and Department of Homeland Security can surely play a role here, but the reality is that we must work hard to achieve our goals through action by Congress. The good news is that diligence and hard work by gay and lesbian binational couples since the introduction of the Permanent Partners Immigration Act in 2000 (now known as the Uniting American Families Act) has achieved a respectable and sustained level of support in both houses. But the hardest work is ahead of us: Senator Robert Menendez (D-NJ) has not included us in the Senate version of the draft legislation because of pressure from, among others, the U.S. Conference of Catholic Bishops. California Congressman Mike Honda (D-NY), on the other hand, has not only included us in his parallel legislation in the House but he has actively championed the inclusion of lesbian and gay binational couples in comprehensive immigration reform.
Across the country we must stand up and make our voices heard. Gilibrand and Schumer in New York have indicated their support, but we must work until we have firm commitments from them and all other allies in the Senate that comprehensive immigration reform, which is expected to be taken up in 2010, will include lesbian and gay families. Write, call and visit your Senator's local offices now.
Folks in California should be focused on the recalcitrant Senator Diane Feinstein, who has stated her agreement in principle but has not acted to support UAFA. We need her to be a fierce advocate now.
I am an immigrant to the United States who has worked on LGBT immigration issues for 16 years. For most of that time I was half of a binational couple and lived with the stress of uncertainty that afflicts tens of thousands of similarly situated gay couples. And from the trenches, I can tell you that we have never been closer to changing this cruel injustice. It is within our grasp if we organize and lobby our Senators and Representatives in the coming weeks and months. Grass roots persistence is key. No organization can do it alone, though Immigration Equality, which I founded, is providing superb leadership in this effort. The largest national gay lobbying organization, HRC, has not made this a top priority. Despite the fact that gay and lesbian partners of US citizens are being deported every day, often forced to return to dangerous circumstances in unsafe countries, the Beltway gay politicos speak of a vague, long-term strategy that (post Hate Crimes) staggers ENDA, Don’t Ask Don’t Tell and DOMA over an undefined horizon and almost always ignores the immediate need to stop the deportations and solve the immigration crisis faced by our community. We cannot wait any longer. Families are being torn apart. Gay couples, many now lawfully married and with children, have been devastated by the threat of deportation that hangs like the sword of Damocles over the foreign national parent, and indeed the fate of the entire family. Americans are self-deporting, becoming forced expatriates and living abroad, some in Canada, which has become a country of refuge for binational couples, even where neither is Canadian, because of their progressive and humane immigration policies. Elderly (American) parents who desperately need the care their adult children can provide often find that they have been torn from them by immigration laws, and deprived of precious time together with them late in life.
The impact on US businesses is far reaching as well, because immigration discrimination invades the workplace, confounds Human Resources professionals who often find that key employees refuse promotions and overseas transfers because of a foreign national partner who is trapped in the United States and cannot travel without being subject to a 10-year bar if he or she departs the country. To say nothing of the other problems faced by foreign partners who cannot work legally, who lack identity documents, who have no bank accounts, social security numbers and who even fall victim to extortion and crime because of their vulnerable status.
The time to act is now, before the Thanksgiving-Christmas holiday season gets in the way of serious legislative work. Call, write and visit your Representatives, and especially your Senators, even if they have "stated" their support, and demand that our families be included in Comprehensive Immigration Reform, especially in Senator Menendez's family reunificiation legislation. For more information see:
http://thehill.com/opinion/op-ed/63987-pass-the-uniting-american-families-act
http://mikehonda.blogspot.com/2009/10/one-of-fundamental-parts-of-our.html
http://immigrationequality.org/blog/?p=1337 and http://www.nytimes.com/2009/06/03/us/politics/03immig.html
Thanks for the comment, Lavi.
I agree that the most promise exists in legislation such as UAFA instead of in workarounds such as asylum applications.
Many people have said that the asylum application was bogus and that it should have been rejected. Fair enough. The point was to emphasize the difficulty that foreign same sex spouses have in getting U.S. residency.