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


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.

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 and dental information, cheap life insurance for parents over 50, 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.

Screen Shot 2013-12-20 at 3.37.10 PM

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). 

India’s Supreme Court Re-Criminalizes Gay Sex

Pyaar Kiya Koi Chori Nahi

Photo credit: CNN-IBN India

In a shockingly poor decision, the Indian Supreme Court has reversed the July 2009 ruling of the Delhi High Court decriminalising gay sex between consenting adults. In doing so, India’s Supreme Court has recriminalized gay sex in India, rendering almost 20 percent of the global LGBT population illegal.

Overturning a High Court decision, the Indian Supreme Court upheld Indian Penal Code 377, an archaic and barbaric law that criminalizes “homosexual” acts:

377. Unnatural offenses — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Western media and LGBT organizations are already demonizing India as “backward” after this ruling, which does not make life easier for Indians who are gay and lesbian abroad, and conveniently casts the West as an arbiter of freedom. In fact, the New York Times took a potshot at Asian countries as a whole in reporting about India’s tragic decision, perhaps forgetting that gay sex was illegal in parts of the United States only ten years ago. Because LGBT people have been marginalized and mistreated for so long, many people in the West mistakenly see some forms of “gay rights” as a marker for progress or modernity. Anthropologist Akshaye Khanna articulates this quite well:

We are seeing, in several parts of the world, a cynical appropriation of the discourse of sexual rights and sexuality by right wing and reactionary agendas. In Western Europe, North America and Israel, we see the phenomenon of ‘homonationalism’, where LGBT discourse is being used in deeply racist—usually Islamophobic—groups. In East Africa, the question of sexuality has come to be the central question in discourse about the nation – where notions of ‘Africanness’ have come to be tied to the position on homosexuality. This centering of the question of sexuality is always a way of diverting attention from political and economic questions relating to the control over natural resources, or instances of corruption.

While people in India and across the world are mourning and expressing outrage at the ruling, and shaming the entire country, it is important to note that Indian Penal Code 377 is a relic of British rule and colonialism. Contrary to the sexual puritanism and homophobia that the British wrote into the law while colonizing India, Indian and Hindu culture is enriched with queer sensibility. It is rather ironic that the British are finally getting ready to start allowing same-sex marriages next year, while their retrograde policies in former colonies continue to harm and hamper peoples lives. The Indian Supreme Court ruling is a reminder that the Indian people cannot rely on courts to strike down an injustice rooted in colonial oppression, and that colonial ideas remain ingrained in a so-called post-colonial country.

However, colonial-era law or not, many Indians are rightly outraged by this decision from the Indian Supreme Court, which should have outlawed colonial-era discrimination, instead of punting the question of sodomy to the Indian parliament. Thus far, the Indian parliament has remained non-commital on the issue, sparking more outrage on social media and across the country. In a display of vibrant democracy, Indians are taking to the streets both in India and abroad in protest of the ruling. That hardly seems backward and regressive to me.

Funnily, while LGBT organizations in the U.S. expressed disappointement at the decision, they have rarely ever expressed the same sort of outrage about queer immigrants who are criminalized and locked up in detention at home. Claudette Hubbard, a long-time lawful permanent resident of the U.S. who escaped Jamaica after facing persecution for being gay, has been locked in an ICE detention facility for two years now. Viesca, a transgender detainee at El Paso, Texas who won her credible fear interview, reported constant degradation and harassment from guards, and finally agreed to her own deportation yesterday. Kumar Jagdish, a gay asylum seeker from India, has been detained at El Paso, Texas since June, 2013. You won’t hear these stories in the mainstream media, because they do not show a flattering image of the United States as a beacon of hope or democracy. After all, detaining and deporting thousands of immigrants daily is not a marker of modernity any more than criminalizing homosexuality. Frankly, I am disappointed in all of us.

As for Section 377, the law is clearly an abomination. While Section 377 has rarely been used to criminalize gay persons in India, Indian queer liberation activist Kaveri Indira reports that there are many enforced laws on the books that cause less nationl and international outrage, such as Karnataka Police Acts, which criminalizes hijras, gender transgressives and transgender persons. Perhaps it is time to take the outrage, and pour it into the threats and daily assaults against queer and transgender persons of color that are far more real and tangible in both the U.S. and India, than this poor Supreme Court decision.


Yesterday, we had a paparazzi wedding ceremony at the Lutheran Church of Reformation in Washington D.C.


It was nonetheless, lovely to share our love with so many people, including all our badass friends from the National Immigrant Youth Alliance, and the same-sex binational couples from Immigration Equality who have so long been denied due process and equal protection under the law.


Special thanks go to Emiliano Rojas, son of Claudio Rojas, who is the Cake Boss of the movement and stayed up all night making us a beautiful wedding cake with the help of Cristobal Lagunas-Alvarez, from DreamActivist Massachusetts. We are still eating through it, but you can have a photo.


We’ll be getting legally married in a private ceremony in August.


Thank you so much for making this day so wonderful and special.

Now Lindsay can work towards getting her Fijian citizenship.

Some media articles about the wedding are here:

P.S. Please email Lindsay Schubiner,, for media quotes and comments as I’m busy studying for the bar exam.

P.P.S. Please send us all photos of the wedding ceremony!

Photo Credit: William Anderson, Benito Miller and Immigration Equality


Post-DOMA – How Can LGBT Persons Benefit Under Current Immigration Laws?

With the Defense of Marriage Act dead, marriage equality provides more than 1,100 federal benefits previously unavailable to same-sex spouses.

I’m pretty sure that is an undercount given I can think of a hundred different immigration benefits alone. There are more than 24,000 American same-sex binational couples, but the immigration consequences of the Supreme Court’s decision to strike down DOMA goes beyond simply conferring green-cards to bi-national couples, and even affects step-children, adoption issues, derivative citizenship, and so on.

Some of the benefits that USCIS can promulgate immediately, without the need for new regulations or rule making, include:

  • Plain old adjustment of status to green card holder or consular processing and entering as lawful permanent resident;
  • Eligibility for provisional waivers for persons who entered without inspection;
  • Eligibility for I-601 hardship waivers for persons who were deported or left the country and triggered a 3/10 year bar;
  • In the special case of DACA beneficiaries who are queer, if they can obtain advance parole to travel under DACA, in theory, when they re-enter the U.S., they should be able to adjust their status through marriage to a U.S. citizen spouse (assuming no prior deportation);
  • Immigration benefits for step-children from a same-sex marriage;
  • Availability of waivers based on relationship to U.S. citizen spouse during removal defense including cancellation of removal, 212(h), and so on;
  • Relief under the Violence Against Women Act for battered spouses of U.S. citizens;
  • Derivative immigrant and non-immigrant visas, for legally-wed spouses including L-2; H-4, most E and EB categories and so on so that foreign-born and/or binational same-sex couples can actually live together in the U.S.;
  • Green card for persons who receiving withholding of removal, who now have U.S. citizen spouses.

That’s just a few examples. However, not everything is fine and dandy in the world, with DOMA gone.

Problems that remain

  • Enforcement – USCIS has not yet started issuing green cards for same-sex binational couples, or recognizing them as eligible for other benefits and waivers, but this is just a matter of time;
  • As immigration law recognizes a bona-fide marriage based on “place of marriage,” people who are too sick or poor to travel to one of the few states that provide for same-sex marriage lose out. A creative solution would perhaps be to figure out how video-conferencing technology can enable marriage of a couple stuck in an anti-marriage state or country;
  • Asylum seekers cannot get follow-to-join benefits for their partners left behind in countries with despicable LGBT human rights records. A creative solution for this may be enabling asylum seekers to gain humanitarian parole for a partner;
  • People detained in anti-marriage-equality states would also be left to fend for themselves. While this is true for even straight people, LGBT persons are more vulnerable in detention;
  • Bigoted consular processing officials who reveal the sexual orientation of an applicant to their relatives, putting their lives at jeopardy in their home countries;
  • Bigoted case officers in the U.S. – Now LGB couples can enjoy the misery that straight couples go through at marriage-based interviews;
  • Persons who have remained closeted, who come out and claim marriage benefits such as health insurance, may be subject to employment sanctions and workplace discrimination, which remains entirely legal;
  • For decades, LGBT persons have been evading border controls in creative ways. Those ways may come back to bite in some instances, especially where gay persons have committed marriage fraud by marrying straight persons for papers. There are, of course, several defenses, and one should seriously consider exploring all their options with an immigration lawyer experienced in litigation and removal defense. It is critical to note here that simply marrying to get papers is not fraud — fraud is triggered when papers are filed to get a particular immigration benefit.

I’m sure people have many questions and are seeking more practical knowledge for their individual cases. As such, I’d implore people to join Immigration Equality’s Legal Director Victoria Neilson, and Binational Couples Attorney, Tom Plummer, for a special, 90-minute conference call today at Noon ET. 

To join the call, dial
(800) 868-1837
(404) 920-6440 if you are outside the United States
and use access code 397548#

The IE legal team has posted answers to preliminary questions on their website. You can read those online here.

Please note: Nothing in this post denotes legal advice or is offered in substitution of advice from a lawyer. Success is not guaranteed and different people have different results.