Same-Sex Couples Fight for Immigration Rights

Originally appeared in Immigrant Connect.

UPDATE: Section 3 of the Defense of Marriage Act was declared unconstitutional by the Supreme Court on June 26, 2013. Same-sex married couples are now eligible for federal marriage benefits, including the ability to sponsor foreign spouses for citizenship.

Center on Halsted, the largest gay and lesbian community center in the Midwest, recently held a seminar on gay and lesbian immigration rights. Panelists had to tell the hopeful audience that same-sex provisions would not be included in the immigration reform bill heading to the Senate floor.

Center on Halsted, the largest gay and lesbian community center in the Midwest, recently held a seminar on gay and lesbian immigration rights. Panelists had to tell the hopeful audience that same-sex provisions would not be included in the immigration reform bill heading to the Senate floor. (Click to enlarge)

Attorney Michael Jarecki had a client struggling to help her British partner stay in the United States.

Ordinarily, this situation wouldn’t be a problem. United States immigration law allows American citizens to sponsor a foreign spouse for lawful permanent resident status.

But Jarecki’s client wasn’t married. She was lesbian in a committed relationship, and securing residency for a foreign same-sex partner in the United States is nearly impossible.

“She tried to get her partner sponsored from different companies,” said Jarecki. “She tried to look at the student visa route. Everything kept coming up no, no, no.”

The client, whose name Jarecki prefers to keep confidential, was a doctor working in New York. She decided that it was easier to move to Great Britain with her partner than to continue their fight with the United States government. She closed her practice, a clinic for HIV-positive people, losing relationships with her patients.

The law preventing Jarecki’s client from sponsoring her partner for citizenship is called the Defense of Marriage Act, or DOMA. Passed in 1996, it defines marriage at the federal level as between a man and a woman and restricts federal marriage benefits to opposite-sex marriages only.

Currently, the Supreme Court is debating the constitutionality of section 3 of the marriage act – the statute that specifically bans the recognition of same-sex marriages for federal benefits – in the case United States v. Windsor. The court is expected to deliver a verdict by the end of June.

“It’s extremely important that the statute is found unconstitutional,” said Jarecki. “Because if it isn’t, then the more than one thousand benefits that are offered to heterosexual individuals who are married don’t get offered to gay individuals who are married. And one of those federal benefits is immigration.”

According to the Williams Institute and the Center for American Progress, a University of Southern California at Los Angeles law think tank and an independent nonpartisan research institute, 267,000 of the roughly 904,000 gay immigrants in the United States right now are undocumented. Out of the gay undocumented population – a community self-described as “undocuqueer” – an estimated 30,000 are in relationships with United States citizens.

The U.S. Citizen and Immigration Services, the agency that oversees immigration, does not currently allow citizens to petition for residency for same-sex partners from other countries. Even if the couple is married in a state that allows same-sex marriage, the agency will not recognize that marriage for immigration benefits due to the federal ban codified in the marriage act.

Whether or not the agency will allow same-sex couples to petition if the marriage act is struck down is an open question. Gay rights activists are hoping that immigration reform legislation will specifically grant same-sex spouses the right to sponsor each other for citizenship.

Will Immigration Reform be Gay-Inclusive?

A basic breakdown of the newly-introduced immigration reform bill heading to the Senate floor. (Click to enlarge)

A basic breakdown of the newly-introduced immigration reform bill heading to the Senate floor. (Click to enlarge)

A basic breakdown of the newly-introduced immigration reform bill heading to the Senate floor (click to enlarge)

The Pew Hispanic Center estimates that there are around 11 million undocumented immigrants currently living in the United States, and the National Immigration Forum, a nonprofit immigration policy center, estimated in an August 2012 report that the U.S. spends $5.5 million daily on immigration detention. Many employers, especially in industries like construction or agriculture, hire undocumented workers over U.S. citizens or permanent residents because the undocumented workers are cheaper.

A recent Gallup Poll shows that the majority of Americans favor improving the immigration system, regardless of their political affiliation. At least two-thirds of Americans favor each of five specific measures designed to address immigration issues, ranging from 68 percent who would vote for increased government spending on security measures and enforcement at U.S. borders to 85 percent who would vote for a requirement that employers verify the immigration status of all new hires. More than seven in 10 would vote for a pathway to citizenship for undocumented immigrants currently in the country.

Immigration reforms proposed by Democrats have been consistently and repeatedly shut down by Republican members of Congress in recent years. However, a recently introduced immigration bill that seems to have bipartisan support will be headed to the Senate floor by early June.

The bill, called the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, was introduced to the U.S. Senate in April by the “Gang of Eight,” a bipartisan group of eight leaders within Congress. It would create a militarized zone on the border between the United States and Mexico, and drastically increase federal prosecutions and penalties for illegal immigration. However, it would also legalize the majority of undocumented people currently in the United States as “registered provisional immigrants,” a new legal residency status that would set those included on a 13-year path to citizenship.

Gay rights activists see this as an opportunity to work around the marriage act and obtain protections for same-sex couples in immigration legislation. But in order for the immigration reform bill to advance to the Senate floor, Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) was forced to withhold two amendments that would have included those same-sex couples as part of immigration reform.

During the final committee markups before sending the bill to the Senate, Senators Chuck Schumer (D-NY), Dianne Feinstein (D-Calif.), Dick Durbin (D-Ill.), Al Franken (D-Minn.) and Leahy – all of whom support legalizing gay marriage – spoke about the Republican opposition to the amendments and their difficulty in withdrawing their support.

“If we make the effort to add it to this bill, they will walk away,” said Schumer. “They’ve said it publicly, they’ve told me privately — I believe them. The result: no equality, no immigration bill. Everyone loses.”

Chicago-based attorney Michael Jarecki believes that an overturn of the marriage act will allow same-sex marriages at the state level to be recognized for federal benefits like immigration. (Click to enlarge)

Chicago-based attorney Michael Jarecki believes that an overturn of the marriage act will allow same-sex marriages at the state level to be recognized for federal benefits like immigration. (Click to enlarge)

Can’t Have One Without the Other

Chicago-based attorney Michael Jarecki believes that an overturn of the marriage act will allow same-sex marriages at the state level to be recognized for federal benefits like immigration (click to enlarge)

A repeal of the marriage act would not result in a nationwide legalization of same-sex marriage. In fact, 32 states have passed legislation banning same-sex marriage while only 11 states have actively legalized it.

Jarecki believes that if the marriage act is struck down, same-sex marriages at the state level will be recognized on the federal level.

“If DOMA is found unconstitutional, that means if you’re married in a state, you can apply for immigration benefits. But if you live in a non-marriage equality state, you then have the hardship of going to another state that recognizes marriage equality and then having to go back,” said Jarecki.

That’s only one possibility of many, however. There’s no legal precedent, so it’s possible that a new law actively recognizing same-sex marriage on the federal level may be required.

Even if same-sex marriages at the state level are recognized on the federal level, making it work can get expensive in a hurry. A marriage-based filing costs $1,500, plus attorney’s fees and the cost of traveling to another state. Sometimes, marriage licenses have 24-48 hour waiting periods, meaning that couples would have to pay for hotel rooms and take time off from work.

The bill advancing to the Senate floor does not specifically address gay and lesbian concerns, but Jarecki believes it does have one provision that could benefit undocumented gays.

Currently, if an undocumented immigrant wants to seek protection in the United States from persecution in their native country, there is a one-year deadline in which he or she can file for asylum, starting with the moment of entrance into the country. The immigration bill headed for the Senate floor contains a provision abolishing that one-year filing deadline.

“Coming out isn’t done on a set timeline,” Jarecki said. “Imagine coming from an extremely repressive society where the government wants to kill you, the religious institutions of the country are against you, your family has told you that being gay or lesbian is the most rotten thing on Earth.

“We know that coming out is a life-long process, it’s not just a one-year process, and they’re thinking of getting rid of that one-year filing deadline, which I think would be extremely beneficial to the LGBT community.”

Legislation Doesn’t Necessarily Mean Law

Luis (left) and Brent Holman-Gomez (right) consider themselves to be married, but are unable to claim marriage benefits from the federal government. Luis was undocumented until 2009 and currently has withholding status, which currently bars him from ever becoming a U.S. citizen. (Click to enlarge)

Luis (left) and Brent Holman-Gomez (right) consider themselves to be married, but are unable to claim marriage benefits from the federal government. Luis was undocumented until 2009 and currently has withholding status, which currently bars him from ever becoming a U.S. citizen. (Click to enlarge)

Luis (left) and Brent Holman-Gomez (right) consider themselves to be married, but are unable to claim marriage benefits from the federal government. Luis was undocumented until 2009 and currently has withholding status, which currently bars him from ever becoming a U.S. citizen (click to enlarge)

There is no guarantee that the bill due to be debated on the Senate floor will become law. The House, which is majority Republican, is likely to pass its own version, which must then be reconciled with the version that eventually passes the Senate. Only then, once the reconciled version is passed by both chambers, can President Obama sign it into law.

Douglas Rivlin, director of communications for longtime House representative Luis Gutierrez (D-Ill.) has been working in Washington D.C. on immigration-related issues since 2001. Gutierrez believes that it will take a very different type of bill than the Senate-proposed legislation to pass the House.

“He feels it is unlikely, as many Republicans have indicated, that the House will simply take up the Senate bill and pass it,” Rivlin said.

Rivlin believes that the pressure to pass immigration legislation quickly may cause House Democrats to cave to Republican demands. In this case, the House would likely leave gay rights provisions out of the bill.

“They are under pressure to get that process going soon and therefore may move a partisan, Republican-only approach if there is no bipartisan alternative,” said Rivlin.

Brent Holman-Gomez is an American citizen living in Chicago. Although he and his Mexican partner Luis cannot get legally married in Illinois, they participated in a marriage ceremony in 2001 and consider themselves to be husbands.

Luis illegally crossed the border from Mexico to the United States in 1995 and was undocumented until 2009, when he was granted withholding without removal status – technically a form of deportation, except the government does not force him to leave the country.

Holman-Gomez found out that Luis was undocumented a couple months after they started dating in 1998. If the marriage act is overturned and the law makes it possible for married same-sex couples to obtain federal immigration benefits, the Holman-Gomezes would get legally married immediately – no matter the cost.

“Our reaction would be, ‘Let’s go to Massachusetts and get married right now!’ because we can’t do it in Illinois,” said Holman-Gomez. “We would do whatever is required right away.”

In the short term, Holman-Gomez doubts that the current Congress will pass gay-inclusive immigration legislation. In the long term, he is hopeful.

“A future where we are able to take care of each other similarly to the way that other mixed-sex couples are able to take care of each other and are supported by the laws of this government,” Holman-Gomez said. “That’s what I hope for.”

 

Timeline of LGBTQ Immigration Policy in the U.S. Click here for an expanded version.

 

 

A glossary of potentially unfamiliar terms relating to same-sex immigration issues. (Click to expand)

A glossary of potentially unfamiliar terms relating to same-sex immigration issues. (Click to expand)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cameron Albert-Deitch // Katherine Nagasawa // Immigrant Connect // MEDILL

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