The rights of undocumented immigrants

Of the 10.8 million people who live in the United States undocumented, many are lesbian, gay, bisexual, transgender and queer (LGBTQ). Some of these are LGBTQ youth who came with their families as minors and consider the U.S. their home, while others came to escape persecution in their own countries. They have built their lives here, fallen in love, and started families, but under current U.S. immigration law there is no legal process for them to become citizens. Today they remain in the country in limbo, vulnerable to abuse, and under constant threat of being deported.

LGBTQ undocumented organizers have taken leadership roles in the national campaign for immigrant rights. This has been most visible in the campaign for the Development, Relief, and Education for Alien Minors Act (DREAM), which would provide a conditional path to citizenship for immigrant youth who arrived to the country before the age of 16. LGBTQ youth have “come out” to speak about being LGBTQ and undocumented, using their stories to advocate for change.xiv Additionally some of these youth make specific references to the gay liberation movement as inspiration, citing Harvey Milk’s activism in the 1980s. If these youth were to be deported, some would be going back go countries that they have never known, and that may not be accepting of their sexuality and gender. For many of these LGBTQ undocumented youth the only country they have known is the U.S. and they are fighting for their lives.

The LGBTQ Immigrant Rights Coalition believes in immigration reform that will create a path towards citizenship for undocumented immigrants currently living in the United States, including LGBTQ undocumented youth.

Equality for Same-sex families

LGBTQ immigrants, both documented and undocumented, face hurdles when attempting to regularize their status or become citizens. If an immigrant with a visa happens to fall in love with a U.S. citizen of the same sex, their partner cannot help them change their immigration status to that of a permanent residentv. Because same-sex relationships are not recognized under the Defense of Marriage Act (DOMA), for an immigrant who is in a same-sex marriage, there are an extra 2 years of residency before citizenship if the application is accepted compared to one who is in a heterosexual marriage. But if the application is denied, the immigrant partner will be put in deportation proceedings. There are at least 35,000 same-sex couples in the U.S. that are affected by the immigration system.

If a person is in deportation proceedings, whether it is because they traveled undocumented or were denied adjustment of status, there are very few options for them to remain in the country – heterosexual or LGBTQ. Some get a “cancelation of removal” from immigration when they have family members- children, husbands or wives, except that for same-sex couples, their citizen spouses do not count. As of May 2011 the policy of the Obama administration has explicitly been to deport immigrant same-sex partners of U.S. citizens, regardless of marital status. This year the Department of Homeland Security (DHS) has estimated that they will deport over 400,000 people, the most annual deportations in the country’s history. According to statistics by DHS a third of immigrants detained have no criminal record, many of them include LGBTQ people, and permanent partners of U.S. citizens. [NOTE: This may change under the recent change in enforcement priorities announced by the Obama administration, and the guidelines for prosecutorial discretion announced by DHS. These procedures include LGBT people and same-sex couples, according to the White House, however there are still many questions about the implementation and efficacy of the policy].

Deportations and Prosecutorial Discretion

As of September 12th the Obama administration has deported about 1.06 million people, according to statistics from the Department of Homeland Security. This is the highest number of deportations under any president in U.S. history. At the same time, the administration announced in August an initiative to review and close low-priority cases of around 300,000 people, and direct resources to removing people with criminal records and those considered “a threat to national security.” The characteristics to be taken into account in the definition of low-priority cases are based on the memo on prosecutorial discretion by Immigration and Customs Enforcement Director John Morton, and include: age of entry into the U.S. – particularly for those who came as children; relationships to U.S. citizens – including members of the military; a person’s criminal and immigration history; and the person’s pursuit of education, amongst others. According to the white house their definition of “Family” and “Relatives” includes same-sex partners.

The Coalition is working with its partners to make sure that there is a fair process for review of these cases, and that the policy is applied to LGBT immigrants and same-sex couples.

Asylum-seekers and Refugees

Many LGBTQ and HIV positive immigrants leave their country of birth escaping homophobic and transphobic violence, including threats to their lives. Since 1994 the U.S. considers this ground to request asylum and eventually permanent residency. However, the process for asylum can be a long and harsh process, where in the end, there is no guarantee that it will be granted. There are several cases of gay and transgender immigrants, who could not meet the burden of proof for their asylum claim. Some of them have accused immigration judges and officials of holding biased standards based on stereotypes of safety and behavior, and are still in limbo, or detained.

The other issue is that when immigrants arrive to the U.S. they are required to apply for asylum within one year. First, the ability to get asylum based on sexual orientation is still novel to many. Second, LGBT immigrants are more likely to live in the gay community rather than in the immigrant community. And those that live in immigrant communities have little access to LGBT resources. This means they’re less likely to know about the deadline at all. For more information check out NIJC’s report on the effects of the one-year application deadline.

Human Rights Abuses in Detention Centers

civil complaint by the National Immigrant Justice Center against DHS details “sexual assault, denials of medical care, arbitrary confinement, and sever harassment and discrimination” against LGBTQ immigrants. The complaint is on behalf of 13 transgender and gay people who came to the U.S. to escape persecution in their won countries. In addition, there have been several documented cases where transgender immigrants have been denied access to hormones, and HIV+ detainees denied access to medication, resulting in a number of deaths and investigations into human rights abuses. These abuses reflect the wrongful treatment that thousands of immigrants face in detention facilities throughout the country, under a system that disproportionately affects LGBTQ immigrants.

Political Intersections

 The same politicians and organizations that oppose the rights of undocumented immigrants oppose the rights of LGBTQ people. Data shows that we are more likely to encounter a person who favors both immigrant and LGBT rights, than someone who supports immigration, but opposes same-sex marriage. Homophobic politicians are likely to attempt to block immigration reform to prevent LGBTQ immigrants from gaining legal status through same-sex permanent partnerships. LGBTQ movements need to build strategic alliances with immigration movements to ensure equal rights for all.