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. 


Agony and The Real Hobson’s Choice


Not all violence is physical.

Yesterday evening, I willed myself to watch the Senate Judiciary Committee throw certain immigrant families under the bus, including, but not limited to, same sex bi-national couples, and relatives of certain U.S. citizens.

I knew it was coming, and a lot has happened to prepare me for it, but I still don’t have words to express how I feel as the dominoes fell in succession due to fear and cowardice.

I am a writer, but I’ve have never cared for words. Deeds matter, words ring hollow. When people speak beautiful words as a way to redress your grievances and deprive you of constitutionally protected rights, you’ve to pay attention to what is not said. And last night, Senators clearly told thousands of immigrant families that we were not equal to other families, not worth fighting for, and that our right to be together jeopardized 11 million more dreams. Then, they took the coward’s route by punting the question of equal immigration rights for married same-sex bi-national couples to the Supreme Court, while deriding the idea of bringing siblings to the U.S. in cases of extreme hardship as “chain migration.”

Discrimination makes me angry. Mindless prosecution makes me angry. Deportation of people away from their loved ones makes me angry. When a group of straight, white U.S. citizens sit around in a room whining about how hard it is for them to vote on rights for our families, even while most of them are directly responsible for the situation we find ourselves in, the hypocrisy makes me angry. They don’t apologize. They don’t take responsibility for it. Instead, they ask certain families to be responsible and swallow the pill. Wait for our freedom as it is coming. And the entire room erupts into cheers of “Yes We Can.”

Anger is a normal reaction to these things. Anger is necessary for change. No one should tell you otherwise. It’s the agony that is unbearable and unnecessary.

Agony is what happens when I have to listen to people pick and choose over what parts of my being are worthy of equality and what parts are not, what parts are worth fighting for, and what parts must be sacrificed on a pyre. Agony is when I’m presented with the false dichotomy and choice between 11 million dreams or 36,000 families. Agony is when people pretend that your rights, which do not impact them in any way, are a Hobson’s choice for them, even while you are the one rendered without any choice.

Lets not start on the media coverage. I’m not at a crossroad. I’m not conflicted or confused over any part of my identity. Intersectionality doesn’t even begin to define my experiences. And whether or not anyone else understands any of this is not part of my life ambition.

These agonizing experiences, along with many others, with the Gay Inc. and the non-profit immigration reform complex, have transformed me into someone who simply does not give a damn about winning freedom through passing legislation. I’m convinced that we can’t ever legislate freedom. And since we can’t legislate freedom, the fate of a legislation doesn’t have any power over me.

To be clear, I’m certain that many same-sex bi-national couples will win immigration relief at the Supreme Court with the repeal of DOMA, without needing to care for the fate of immigration reform. In the best case scenario, any two persons who get married in a place that recognizes that marriage would be eligible for immigration benefits. And, in fact, the fate of my green card is at the Supreme Court this month, as they mull over whether to grant or deny certioriari in Mayorkas v. de Osorio, an entirely different matter. I’m thoroughly convinced that I will win, and the enemy will lose, and I’ll have my get out of jail card soon. I tell myself that ten years from now, on a tropical island beach, none of this will matter.

Yet, none of these comfortable possibilities makes it the least bit acceptable to discriminate, force people into making false choices, and throw families under the bus. This goes for same-sex bi-national couples as much as Hirono’s amendment 10, which would have allowed for family unity in cases of extreme hardship for U.S. citizens. It is hateful, discriminatory and simply unacceptable without the need for platitudes. Even without physical violence, the violence that we’ve been subjected to over years of watching people make decisions about how we get to arrange our lives and where we get to live comes with deep psychological ramifications, scars unseen to the naked eye, and damage that may be irreversible.

Immigration reform continues to move forward and appears inevitable. In the meanwhile, thousands continue to choose between their love for their country and the love for their families. And thousands continue to face detention and deportation. That will not change with any piece of legislation, as the undocumented that come after us will continue to be treated with hostility, subjected to second-class treatment and forced to live in more containment.

It would be tragic if only it did not happen every day. Maybe the only winning move is not to play.

On Dog Bites and Bombs

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Recommended reading for the week: This Dog Bites

Several years ago, the United States Citizenship and Immigration Services (USCIS) dropped a bomb on my family. My mother was declared legal because her mother is a U.S. citizen, my father was declared legal because his older daughter is a U.S. citizen and I was declared an unauthorized alien, because … I was over 21. Ever since then, we are a family separated by arbitrary borders and categories in the law. I’ve always and I will always consider that an act of terrorism. But I’ve always felt too angry to feel any fear.

I cannot respond in kind. I don’t have the will or power to separate their families. I don’t think that is the right answer or the correct response. We don’t need violence or threats to coerce the government into doing the right thing. We just need to make sure that the system becomes more and more dysfunctional till it totally breaks down.

The immigration system is running on a Windows 1986 model. Instead of buying a completely new system, USCIS keeps adding upgrades. But you know what happens to an old computer that runs on upgrades. It becomes incredibly slow. Some of the programs on it no longer work. Files go missing and become corrupted. And one day, it just stops working.

As an advocate for yourself and your family, your job is two-fold. One, you have to always stay two steps ahead of the system to ensure that they leave you alone. And two, you have to make the system much much slower and break down at an accelerated pace.

Jam fax-lines. Fill up voicemail boxes. Send them thousands of emails per day. Increase their workload exponentially by filing petitions. If they deny your claim and right to stay with your loved ones, sue them in court. Fight every removal proceeding with asylum and cancellation claims and clog the courts till the judges throw out your case. File for a stay of removal. Get Congressional members involved. Send them and their staffers emails, faxes, phone calls. Rally outside their offices till they agree to introduce private bill after private bill and finally get tired to the point that they have to sign onto some sort of pro-immigrant legislation. Still getting deported? Get the media out to the airport and make a press statement. Make the system work for you. Don’t just watch them rip your family apart without a fight.

Make sure you leave a bite, one that leaves a permanent mark.

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Clarying USCIS On Gay Green Cards

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Last week, USCIS told us that they would hold green card petitions filed by same-sex married couples in abeyance. This week, they are telling the press something else. The last thing the agency wants is to spread the perception that they are not following the law of the land regarding DOMA. So now they are going back on their word and resuming deportations.

Amidst, all the confusion regarding the official position of USCIS on issuing green cards to foreign partners of same-sex couples, I stick by what I said originally: inundate them with thousands of marriage-based petitions from same-sex couples. I’d love to see them adjudicate all the petitions and pursue removal proceedings. As a community, it’s time to turn up the heat on the agency and Congressional members.

I’ll say two additional things:

  • USCIS never said it would issue green cards. No one has ever said that the new guidance would give them green cards. This will not benefit those that live abroad and those couples who are not legally married. The end.
  • But if you are tired of being undocumented and came to this country legally, this is your golden chance to get work authorization and all relevant documents besides a green card. It really makes a difference. You can drive legally, work legally, take out loans — what more do you need? If you came here illegally, you are just out of luck.

No organization will completely endorse this position. Because lets face it, we are all lawyers and lawyers never give absolute answers due to professional ethics and a desire to err on the side of caution. But social change is not made using caution. Or lawyers.

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No Blanket Deferred Action for DREAM Act Students

WASHINGTON, DC - DECEMBER 08:  U.S.  Rep. Luis...

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Here’s a persistent media myth that needs to die: President Obama is not deporting undocumented students. Actually, he is.

The President keeps reiterating his support for the DREAM Act and comprehensive immigration reform. He did so on Univision last night. At the same time, undocumented and documented immigration advocates keep pointing out that Obama has deported more people than Bush and Secretary Napolitano seems proud of this fact.

I share the frustration that most of my friends feel on this matter. The most President Obama has done is make a few phone calls, a website banner, a speech — no direct lobbying, no campaigning, no real engaging of the American people on this issue. At the same time, I’m not sure how effective it is to keep asking Obama to grant a blanket deferred actionprosecutorial discretion to not deport — eligible DREAM Act students.

For one, I’ve yet to get a standard legal definition for a “dreamer.” There’s no pending legislation with markers and no chance of one passing before 2013. Without one, I wonder how advocates expect USCIS/DHS to create a blanket deferred action policy. These are details that matter. I can’t possibly lobby for an undefinable blanket deferred action policy for all immigrant youth when I’m in a room with officials from the Department of Homeland Security, who actually do want to help keep the best and brightest in this country. Honestly, these are former alum from my law school and people with backgrounds in international human rights who need something concrete to cover them. I’ve yet to get anything concrete from anyone.

In order to grant some segment of the undocumented youth population blanket deferred action, DHS would need to create a registry of eligible youth. Advocates can keep playing the same fiddle but pigs would fly before that happens absent Congressional action on the issue. Senator Durbin has spoken to Napolitano over at DHS on this on several different occasions and come up with nothing. At best, DHS has to do this on a case by case basis, which it has in the past in the cases of several students. However, I will not defend the amount of lobbying and campaigning each individual case takes. The message to DREAM youth right now is “get arrested, make some noise and we’ll offer you deferred action” and I don’t like that message.

For the next two years, I see an immediate window of opportunity to establish deferred action for same-sex bi-national couples and actually winning relief through the overturning of DOMA. I’ve said that on several occasions. Additionally, with backlogged petitions, clogged immigration courts and a Congress that is unwilling to act on immigration reform, USCIS would need to find more creative ways to maximize judicial economy and efficiency. The best possible win for everyone would be for people with approved petitions to gain prosecutorial discretion without living in limbo.

Anyway, I heard at a movie screening at my law school for Tony and Janina’s Wedding that Rep. Luis Gutierrez is launching his familias unidas tour all over again. All the best.

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