Category Archives: LGBTQ

ICE Releases Woefully Inadequate Transgender Guidance

Crossposted from Medium – Advancing Justice | AAJC

Photo Credit: NDLON

Photo Credit: NDLON

Responding to grassroots pressure from advocates, and mounting criticismfrom congressional leaders such as Mike Honda (D-Calif.), Immigration and Customs Enforcement (ICE) unveiled an 18-page memorandum for the care of transgender immigrants in detention this week.

While these guidelines are a step in the right direction and long overdue, it’s still not enough and here’s why:

1. Detention of vulnerable immigrants is inherently inhumane: The new guidance does nothing to move us away from the prolonged detention of transgender individuals, the vast majority of whom are asylum seekers who have already faced persecution in their home countries, only to be subjected to further pain and suffering at the hands of ICE. Detaining asylum seekers is inhumane, re-traumatizes some of the most vulnerable immigrants and it is contrary to our laws when detention is used as a form of deterrence to dissuade people from coming to the United States. Advocates have repeatedly called on Immigration and Customs Enforcement (ICE) officials to release such detainees once they have proven that their fear of persecution is credible. Officials should act to end the practice of detaining such individuals, as there is no mending it.

2. The new guidance provides inadequate care and housing options: The guidance continues to allow practices that have been denounced as inhumane, such as administrative segregation, ‘protective custody’ and isolated pods for transgender detainees. ICE detains 75 transgender immigrants on average, which is less than one percent of the detainee population, but over 20 percent of sexual assault cases in immigrant detention involve a transgender survivor. Alternative housing practices havefailed to protect transgender immigrants in detention from sexual assault and physical abuse in the past, and should not be used when releasing such detainees on bond or parole is a much more humane and cheaper alternative.

3. No guidelines for the treatment of vulnerable immigrants such as lesbian, gay and bisexual asylum seekers: Many individuals seeking asylum in the United States are detained upon arriving at a port of entry. Many of them, including lesbians, gays and bisexuals, have suffered severe persecution in their home countries. A recent Center for American Progress report shows that ICE routinely detains LGBT immigrants who it knows are at great risk and should not be behind bars. A disproportionate number of undocumented LGBT individuals are Asian American. The new guidelines do nothing to recognize that these individuals, who may have suffered sexual assault and torture in their home countries, remain vulnerable in immigrant detention and should be released.

4. No guidelines for dealing with sexual assault and abuse in detention:Transgender immigrants in ICE custody face extremely harsh conditions such as alarming rates of sexual assault, physical abuse and harassment. While housing them according to their gender identity may reduce some of the violence transgender detainees face, the guidelines provide no mechanism for reporting ongoing violence. Forty percent of sexual assault cases in detention are unreported, and the guidelines contain no mention of how transgender immigrants can report assault, or any measures to protect transgender immigrants from such assault.

5. No enforcement mechanism — The ICE ERO working group that crafted this guidance worked hard to meet with transgender detainees and try to ascertain best practices for the detention of transgender individuals in custody. However, without a grievance mechanism, the guidance may be tough to enforce at all facilities.

We strongly urge the ICE ERO working group to consider alternatives to detention for LGBT and other vulnerable immigrants in detention.

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Astraea Lesbian Foundation for Justice

I recently joined the board of directors at the Astraea Lesbian Foundation for Justice. My growing concern for the lack of philanthropic efforts to address the needs of queer people of color was the prime impetus behind this decision.

I can proudly say that I am drawn to Astraea because as a public foundation, Astraea helps to fund the grassroots work of organizations such as Black Lives Matter and many queer POC groups, who are at the forefront of movement-building and social change in the United States. I am also thrilled at the opportunity to be part of a foundation that is defining lesbian feminism in the most inclusive terms, and advancing global LGBT human rights without advancing colonialism.

I am truly glad to have added it as an organization that goes in my yearly giving portfolio, and hope that many more of my friends and followers can do the same. As a public foundation with a 4/4 Charity Navigator rating, you’ll get the maximum bang for your buck.

Check out our work and let me know if you’ve any questions about the organization!

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“That Awkward Moment When You Run Away from Your Home Country Due to Discrimination For Being Queer, To Be Locked Up in the Land of the Free…”

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Full text: “That awkward moment when you run away from your home country due to discrimination for being queer…Only to be locked up in the land of the free with a lot of machista, and sexist, homophobic, transphobic ICE officers.” – Alejandro Aldana

Yesterday, I received this bittersweet postcard from my dear friend, Alex Aldana, who is currently detained at the Otay Detention Facility in San Diego.

Alex lived with his family in California for ten years, where he graduated from high school and worked hard to make his community a better place. He left the U.S. to go back to Mexico five months ago to care for his sick grandmother.

Over these past few months, Alex discovered how crime and corruption made life particularly difficult for the LGBTQ community in Mexico. In Guadalajara alone, 128 gay and lesbian people have been killed, and none were reported as hate crimes. Now, Alex wants to return to California, where his mother and sibling reside so that he can continue to take care of them, and lead a life that does not entail the amount of violence he would face if he remained in Mexico.

Even with the heightened standard for credible fear instituted by the new Lafferty memo in light of the numerous claims for asylum from Mexico and Central America, Alex has already passed his credible fear interview. This means that according to Immigration and Customs officials, Alex has established a clear and convincing chance of winning asylum before an Immigration Judge based on his fear of persecution in Mexico. According to ICE guidelines, Alex should be released from detention to pursue his asylum case as he is neither a threat nor a flight risk. However, he has been detained at Otay for more than a month for no real reason, and subjected to abuse inside the facility. 

Sign the petition to demand that ICE release Alejandro (Alex) Aldana.

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Dedh Ishqiya – How To Make Your Regressive Audience Watch a Gay Movie

Is Dedh Ishqiya a lesbian movie?

Is Dedh Ishqiya a lesbian movie?

Dedh Ishqiya, the sequel to Ishqiya, is brilliant for its subtlety and in the way that viewers have been left to wonder in amazement about the relationship between Madhuri Dixit and Huma Qureshi, the two leading ladies in the movie.

Here is the ultimate movie spoiler: Yes, indeed. Madhuri and Huma are supposed to be together in the movie, as in lesbians or at least, bisexual.

Lesbian or gay themed movies are not mainstream in Indian or even American cinema, but Dedh Ishqiya goes where few movies have gone before. This subtle way of exposing the audience to lesbianism is perfect because it does not play on stereotypes to reduce women to caricatures (Girlfriend), does not treat queerness like a bad joke (Dostana), while engaging a mainstream audience lost to brilliant but art-house gay Bollywood movies such as Fire or Onir‘s I Am.

What makes the movie a success? Well, read on.

1. Recruit an icon of Indian cinema for the lead role.

Madhuri Dixit is simply stunning in her lead role as Begum Para. There is no doubt that the movie was made with her in mind, as she shines in scene after scene with eloquence and mastery, delivering a magnum opus performance. In an industry where female stars have an expiry date of 30, her resilience and star power in her late forties makes her a true legend of Indian cinema.

2. Master the Craft of Subtlety

When Fire, a movie that explored lesbian relationships, hit the cinemas, Indian audiences protested by burning effigies, shutting down cinemas. Faced with that atrocity and the recent Section 377 decision that criminalizes sodomy in India, subversion is a great tool to drive home a point. The relationship is portrayed through playful talk and kept in the shadows from the audience. By not placing an emphasis on the actual sexual act of the two women, the film forces the viewers to humanize the lead characters.

When Naseerudin Shah’s character states “lihaaf mang le” towards the end of the movie, this is a reference to Lihaaf, a short story written by Ismat Chughtai, an independence era writer, on sexual repression, women’s liberation and homosexuality. In fact, with a similar plot line of a closeted Nawab and a repressed Begum, Dedh Ishqiya can be read as a movie adaptation of Lihaaf. The rest of the story is merely a camouflage for this revelation, cleverly made for the audience to consume homosexuality without knowing it.

And it worked. No one is burning down cinemas and taking out effigies of the actors. Rather, the audience is reveling in this masterpiece.

Why are you still reading? You should go watch Dedh Ishqiya now.

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Nigeria’s New Law Criminalizing Gays

India Nigeria Locator

India Nigeria Locator (Photo credit: Wikipedia)

First India, and now Nigeria.

Albeit, the situation in Nigeria is far worse.

Nigerian President, Goodluck Jonathan, signed into law a draconian anti-gay bill. Same sex relationships were already illegal in Nigeria but under the new law, anyone who enters into a same-sex marriage or partnership may be jailed for up to 14 years. The new law also bans people who register, operate or participate in gay clubs, societies or organizations, or who publicly show that they are in a same-sex relationship.

In less than a week, dozens of people have been rounded up, arrested, and questioned under the new anti-gay law. 11 Muslim men in Nigeria also face a possible death sentence. More disturbing reports are trickling out. Amnesty International, and many other countries have called for the government to halt the homophobic witch-hunt. Some are also exploring withholding foreign aid to Nigeria.

Withholding aid is not particularly helpful in such a situation. Nigeria’s LGBT community needs all the help it can get in order to work to change attitudes or escape the situation in their home country, if that is what they want to do.

There are reports of some people escaping persecution by obtaining false documents or visas to travel to the U.S. or another country (though they must reveal their true identity and apply for asylum at the port of entry), but it is unclear who and how this underground railroad is organized. Also, I am not sure if asylum seekers who make it to the U.S. only to be locked up in detention for months, sometimes years, as arriving aliens, are better off here or there. It’s like being stuck between a rock and a hard place. Perhaps they are better off finding another country. 

While the law spells terror for Nigerians, it is a blessing in disguise for many LGBT Nigerians already in the U.S., who can now seek asylum, withholding, or reopen their failed asylum claims. If you have gay friends and family members from Nigeria, do let them know to consult an immigration attorney for help in seeking asylum from Nigeria.

 

Please note: Nothing in this post denotes legal advice or is offered in substitution of advice from a lawyer. Success is not guaranteed in every case, and results often vary. 

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Top 10 Victories for Immigrant Rights in 2013

This post was originally posted at Race Files

While Congress struggled in 2013 to enact just and meaningful reform, and the President is close to surpassing 2 million deportations, immigrants won victories in many states and many levels.

In no particular order:

1. The Supreme Court Strikes Down Section 3 of the Defense of Marriage Act

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Undoubtedly, the fall of DOMA’s Section 3 has brought much-needed relief among members of the LGBT community. While there is much more left to do in terms of winning rights for all members of the LGBT community, over 36,000 bi-national same-sex couples can finally live together without worrying about imminent family separation due to archaic U.S. immigration policies. With same-sex couples now scoring green cards throughout the country, and non-immigrants gaining the ability to finally bring their partners to the U.S., this is one giant step forward for immigrant rights.

Honorable mentions: The Supreme Court also struck down Arizona’s law requiring proof of citizenship to vote, and also provided relief from removal for many individuals who were charged for drug trafficking for mere possession of marijuana under state laws.

2. Driver’s Licenses for Undocumented Residents

In 2012, only three states–Washington, New Mexico, Utah–granted driver’s licenses to undocumented immigrants. Great local organizing in 2013 saw additional states such as MarylandNevadaIllinoisVermontColoradoConnecticutOregonCalifornia and the District of Columbia and Puerto Rico, will see those states granting driver’s licenses to undocumented residents in the New Year.

Driver’s licenses for undocumented residents is a public safety issue because immigrants have to pass the road test before they can get licensed, and they are also more likely to purchase auto-insurance.

3. Instate-Tuition for Undocumented Students

New JerseyColoradoMinnesota, and Oregon passed laws that permit in-state tuition for undocumented students. MassachusettsFlorida, and the Ohio Board of Regents also approved a tuition-waiver for DACA-eligible students. These states joined California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, and Washington state, who have similar laws on the books.

4. Drop the I-Word

More media outlets such as the Associated PressUSA TodayDenver PostGood Morning America, and the San Francisco Chronicle, took a step towards dropping the use of “illegal immigrant” in their coverage of stories about undocumented or unauthorized immigrants. Last year, I wrote an article for the New America Media as to why journalists should drop the word as it is more complicated than legal and illegal. Race Forward has more information about the Drop the I-Word campaign. Hopefully, more outlets decide to drop the use of this inaccurate and dehumanizing discourse, and adopt less politically charged language such as “irregular” migrants.

5. More Use of Administrative Measures to Provide Relief for Immigrants

After issuing the successful Deferred Action for Childhood Arrivals (DACA) program to provide relief for undocumented people brought here as minors, federal officials also issued memos to stop disrupting the parental rights of undocumented parents and issued parole-in-place to stop the deportation of immediate family members of U.S. military personnel. As NDLON’s growing Not 1 More Deportation campaign puts more pressure on the Executive Branch, it would be interesting to see whether President Obama can continue using administrative measures to decrease or stop deportations until Congress can enact some meaningful immigration reform.

6. States Fight Back Against “Secure Communities”

Joining the District of Columbia and Illinois, California passed the TRUST Act to prohibit local law enforcement officials from detaining immigrants longer than necessary for minor crimes in order to hand them over to Immigration and Customs Enforcement (ICE). Now, local law enforcement in California can only hand over non-U.S. citizens to ICE in the event of serious crimes and sex offenses. California also saw the passage of a spate of pro-immigration bills, such as one to grant law licenses to undocumented law school graduates, and made it a crime for attorneys and employers to “induce fear” by threatening to report someone’s immigration status.

7. Federal Court Provides Due Process for Detained Immigrants

In Rodriguez v. Robbins, the Ninth Circuit held that the government must provide automatic bond hearings to immigrants detained six months or longer. Before this case, non-U.S. citizens facing removal from the country would languish in detention for months, even years, until the adjudication of their cases. According to the American Civil Liberties Union, this ruling should benefit thousands of immigration detainees across the Ninth Circuit, which includes states such as California, Oregon, Washington, Nevada, Alaska, Idaho, Montana and Arizona. Here is more information on how to request a Rodriguez bond hearing.

8. Reauthorization of the Violence Against Women Act (VAWA)

After a long wait, Congress reauthorized the Violence Against Women Act (VAWA), with several new protections that are of relevance to immigrants. Most notably, Congress added “stalking” to the list of crimes covered by the U-visa, available for victims of crime in the U.S. The reauthorization of VAWA also allows the surviving minor children of a VAWA self-petitioner to retain the ability to qualify for lawful permanent residence in the event that the qualifying relative passes away after the filing of the application.

9. Federal Court Delivers Blow to Alabama Anti-Immigrant Law

legal settlement proved to be a death-knell for one of the worst immigration laws in the country. Alabama’s anti-immigrant law, HB 56, followed the same fate as anti-immigrant laws passed by states like Arizona, Georgia and South Carolina, when the 11th Circuit Court of Appeals struck down many of its most invidious provisions, and the U.S. Supreme Court denied hearing an appeal from the state. Under the settlement agreement, Alabama can no longer detain persons solely for their immigration status.

10. Bring Them Home – The DREAM 9 and DREAM 30

In a bold act of civil disobedience, three undocumented youth leaders self-deported to Mexico, in order to bring back their previously deported counterparts. All nine were paroled into the United States, but spent weeks at El Paso Detention Center where they uncovered various different cases of abuse against immigrant detainees. Similarly, the DREAM 30 were another group of formerly undocumented immigrants who came back to the United States. While some were deported as part of a cynical political ploy, most were paroled into the U.S. and allowed to stay here to pursue their asylum claims. Their bold actions reunited families, expanded the definition of a “Dreamer” beyond U.S. borders, placed pressure on the Obama Administration to stop deportations, and highlighted the prolonged detention of asylum seekers who had already established “credible fear” of returning to their countries of origin.

We look forward to some more inspiring victories for immigrants and racial justice in 2014.

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An Easy I-130 Marriage Interview

Lindsay Schubiner and Prerna Lal

Lindsay Schubiner and Prerna Lal, at our official wedding ceremony in Washington D.C.

Today, I walked in and out of one of the easiest I-130 interviews at the United States Citizenship and Immigration Services (USCIS).

Heterosexual or not, standalone I-130 interviews are rare. They are typically given when the foreign national spouse is in removal proceedings or deported from the country. The purpose of the interview is to establish whether the petitioner and the beneficiary have a bonafide marriage. Usually, the interviewing officer is checking for marriage fraud. Because only an Immigration Judge (IJ) has jurisdiction over issuing a green card to someone in removal proceedings, the USCIS performs the first step to ensure that the relationship between the petitioner and beneficiary was not entered into to gain immigration benefits.

After the approval of the I-130, the applicant has two options if they want to proceed with getting a green card. First, an applicant can go back to court and file a motion for adjustment of status, and get a new hearing date from the IJ. Second, the applicant may file a motion to terminate proceedings and if granted, proceed with adjustment of status at the USCIS.

Several things played in our favor, especially as a same-sex couple. We had a symbolic, public wedding ceremony after Section 3 of the Defense of Marriage Act (DOMA) was overturned, which gained a lot of press attention. As we were walking out, the interviewing officer told us that it was not every day that she met couples who had newspaper articles written about them.

Second, I prepared the initial application, and made sure to augment the forms with enough bona-fide evidence of our marriage including our  joint leases, shared bank account statements, photos with narrative history, magazine and newspaper articles. It hit the right spot. Today, we augmented it with joint health, dental and life insurance information, voided check with our names, more shared bank account and credit card statements, and evidence of our shared gym membership. I had a photo album with recent photos and scrapbook, but there was no need for that.

Third, I requested ICE attorneys to use prosecutorial discretion in expediting our I-130 adjudication as set forth in an August 10, 2010 memo, Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions. Under normal wait times, an I-130 standalone application takes 11 months to process. To their credit, ICE attorneys on both sides of the country returned every phone call and email, and granted my request to expedite by changing the venue of removal proceedings, sending my A-files across the country, and setting us up with an interview within a month.

Here are some of the questions that the USCIS interviewer asked us today:

  • Biographical: Names, addresses, date of birth, place of birth and whether we had ever been married before;
  • How and where we met?
  • When did we start dating?
  • When did we first move in together?
  • Who proposed to whom?
  • Where did she propose?
  • Who came to the official wedding ceremony and how many people were there?

My partner, Lindsay and I, walked in at 8:03 am with a mutual lawyer friend, and we were done by 8:10 am. The interviewing officer said she would look everything over once more but anticipated approving the application.

Update: The I-130 was approved the same day.

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As icing on the cake, I just received my work permit renewal in the mail, valid until January 2015.

Judging by this red carpet treatment, one would think the U.S. immigration system has no flaws. Alas, my many years of experience as an undocumented immigrant and an immigrant rights advocate tells me otherwise.

(This post is a mere restatement of my experience and does not constitute legal advice and does not create a lawyer-client relationship. Please note results may, and very often, vary). 

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