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Inequality under the Radar

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The plight of the LGBT or HIV-positive immigrants
by John Nechman

In the fight for equality, many of the most heart-wrenching battles occur in forced secrecy. LGBT and HIV-positive immigrants and their U.S. citizen partners must deal with what many consider to be America’s most complex laws while finding themselves compelled to keep their sexual orientation or HIV status concealed. The U.S. lags embarrassingly behind much of the world on LGBT immigration law, and since the terrorist attacks of September 11, 2001, Congress has passed virtually no pro-immigrant legislation. Moreover, state and local governments have started taking immigration into their own hands, further exacerbating fear among thousands of committed couples and individuals who cannot rectify their situations under current law, though they could if they were not gay or transgender.

Houston’s ethnic diversity and sizable LGBT community mean that we are a national hub for same-sex bi-national couples and other immigrants who have settled here for economic reasons or to escape persecution. The previous U.S. Census in 2000 identified nearly 36,000 same-sex bi-national couples in the U.S. where at least one partner was a U.S. citizen, and that number is surely much greater today. Many of these couples, however, unable to endure the fear of living without legal documentation in a country with brutal deportation laws, find themselves forced to live apart or even break up—or they leave the U.S. for countries with fairer immigration laws.


History of U.S. LGBT/HIV

Immigration Laws

Until 1990, homosexuals were barred from entering the U.S. for being “sexual deviates, psychopathic personalities, and mentally defective, and persons of institutional psychopathic inferiority.” Though the ban finally ended, LGBT/HIV-positive immigrants continued to face barriers to entry due, for example, to the existence of laws like Texas’s homosexual conduct statute that remained valid until the monumental 2003 U.S. Supreme Court case of Lawrence and Garner v. Texas. In 1982, the Ninth Circuit Court of Appeals refused to recognize a valid marriage between a U.S. citizen and his same-sex Australian husband (granted in Boulder, Colorado!), concluding that it was unlikely that Congress intended to permit homosexual marriages for purposes of qualifying as a spouse of a citizen, when homosexuals were explicitly barred from entering the U.S.  That decision (Adams v. Howerton) was fortified by the 1996 passage of the Defense of Marriage Act (DOMA), which considers for federal law purposes (such as immigration laws) the word “marriage” to be “a legal union of one man and one woman as husband and wife,” and a “spouse” refers to “a person of the opposite sex who is a husband or a wife.” The combination of the Adams decision, DOMA, and Congress’s plenary constitutional powers to pass virtually any law it wishes with respect to immigration are the reasons a same-sex immigration case has not been used to challenge the unconstitutionality of the ban on same-sex marriage.

Legislation that Could Help

Bi-national Same-sex Couples

On February 14, 2000, the Permanent Partners Immigration Act (PPIA) was introduced into Congress. PPIA would allow U.S. citizens over 18 to sponsor permanent same-sex partners for green cards, just as heterosexual couples may now do. To qualify as a permanent partner, a person would have to show: (a) a relationship with another adult in which both parties intend a life-long commitment; (b) financial interdependence; (c) exclusivity; (d) inability to marry in a manner that is “cognizable” under immigration law; and (e) absence of a close blood relationship. Although several states and countries now recognize same-sex marriages, that does not help same-sex bi-national couples because federal law (DOMA) trumps state laws. PPIA is now called the Uniting American Families Act (UAFA) and has 135 co-sponsors in the House of Representatives and 25 in the Senate.
The only UAFA support in Texas is from Houston Rep. Sheila Jackson-Lee and Dallas Rep. Eddie Bernice Johnson.

Other Issues Affecting

LGBT/HIV-Positive Immigrants

Immigrants may qualify for asylum in the U.S. if they show that they have been the victims of past persecution or that they have a well-founded fear of future persecution based on, among other things, membership in a particular social group. The persecution must be from a government body or group the government refuses or cannot control. In 1994, Attorney General Janet Reno declared that homosexuals could qualify as members of a particular social group eligible for asylum consideration, and many cases have also been granted for people based on being transgender or HIV-positive.

Immigrants with HIV enjoyed a rare immigration victory on January 4, 2010, when America’s two-decade-old HIV travel and immigration ban finally ended. The implementing regulations removed HIV from the list of “communicable diseases of public health significance,” so those seeking to enter the U.S. as a visitor can now do so without having to disclose HIV status. The regulations also removed the HIV testing requirement for green card applicants.

In May of 2005, in a case called Matter of Lovo-Lara, the Board of Immigration Appeals issued a precedent-setting decision finding that a marriage in which one spouse was a post-operative transsexual was valid for immigration purposes where the marriage was valid in the state in which it was entered. This decision reversed a troubling trend of denials in similar cases around the country before 2005. Transgender immigrants still have frequent difficulties obtaining proper identification documents despite the issuance of government guidelines meant to clarify this situation.

New York-based Immigration Equality (immigrationequality.org) is the preeminent U.S. organization working to level the legal playing field for LGBT immigrants. Thankfully, more organizations and people are championing these issues as they become increasingly aware of the often-overlooked and desperate plight of U.S. citizens forced to choose between their partners and their country—which is just one of many injustices faced by LGBT immigrants.

John Nechman is a partner and immigration attorney at Houston’s Katine & Nechman LLP, an adjunct professor teaching LGBT/HIV law at the University of Houston Law Center and South Texas College of Law, and a former chair of New York-based Immigration Equality.


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