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How U.S. Immigration Laws Impact LGBTIQ Families

I wanted to share with you an article I wrote for Out Words magazine about how immigration laws impact LGBTIQ families.  Out Words is a magazine published by the Western Montana Gay & Lesbian Community Center, and addresses issues affecting LGBTIQ Montanans.  If you live in Montana, the magazine is distributed for free in many locations.  I also encourage you to sign up for print or electronic copies.

You can download December’s magazine by clicking here.  My article is reposted below:

US Immigration Laws and LGBTIQ Families

by Shahid Haque-Hausrath, Esq.

Our nation’s immigration laws have been designed to reflect the government’s ever-changing views of who is “deserving” to enter the country. Unfortunately, gay men and women continue to be on the losing end of this analysis. Despite the fact that family reunification is one of the major goals of our immigration system, gay couples still have few options to be together with loved ones in this country.

As the United States began to regulate immigration in the early 1900’s, LGBTIQ immigrants were denied admission to the country based on supposed “mental defects” and “psychopathic personalities.” In the 1960’s, a law was enacted to specifically deny entry based on “sexual deviation.” Many gay couples were tragically refused admission or deported as a result, and the U.S. Supreme Court upheld these actions. Most laws that denied entry for purported medical reasons were repealed in 1990, but other laws continue to preclude most gay couples from taking part in our immigration system.

The fastest and most common way that immigrants obtain permanent residence is through marriage to a U.S. citizen. However, this option is not available to same-sex couples. Even though gay marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., our immigration laws do not accept these marriages. The Defense of Marriage Act of 1996, as well as court and agency interpretations of this law, prevents the federal government from recognizing same-sex marriages regardless of their legal validity.

Because the law looks to one’s gender as determined by a medical doctor, transgender immigrants may have options that are not available to gay couples. Trans immigrants who are not in same- sex relationships can apply for marriage visas. There have also been cases where trans applicants have been able to sponsor their partners after sex reassignment surgery. This is a developing area of the law and trans immigrants should be prepared for difficulties with their applications.

The arbitrary limitations on immigration benefits for same-sex couples must be changed. There are about twenty countries that recognize at least some immigration rights for same-sex couples, including Australia, Belgium, Brazil, Canada, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Israel, Netherlands, New Zealand, Norway, South Africa, Spain, Sweden, and the United Kingdom. A bill has been proposed to bring the U.S. in line with other nations, but so far it has not been successful.

The Uniting American Families Act, sponsored by Senator Patrick Leahy, would allow permanent residents and citizens to sponsor their “permanent partners” for admission to the U.S. just like any other spouse. Unfortunately, this bill has never advanced to a floor vote despite being in existence in one form or another since 2000. Based on the current makeup of Congress, it is unlikely that the bill will move until at least 2012.

Without any realistic family-based options for obtaining immigration status, many LGBTIQ immigrants pursue employment-based visas. Only applicants with graduate degrees can usually get a permanent employment visa within a reasonable time. Permanent visas are backlogged for years for anyone who doesn’t have a Master’s degree or higher. Therefore, many immigrants seek temporary work visas. For visas of any meaningful duration, an immigrant has to have a bachelor’s degree or higher, and an employer who is willing to navigate a complex and expensive process to sponsor them. In the present recession, employment-based applications have decreased significantly, and the Department of Labor has also made the process more difficult through added red tape. Sometimes the stars can align to allow a gay couple to be united, in a roundabout way, through this employment process. However, this isn’t a viable option for most LGBTIQ immigrants.

Some immigrants who have suffered severe persecution in their home countries on account of their gender identity or sexual orientation may apply for refugee or asylum status. This is a difficult process that is limited to those who have a genuine fear that they will be harmed or tortured if they return home. An asylum application can only be filed if you are already in the United States, and it has to be filed within one year of arrival in the U.S. The decision to apply for asylum should not be taken lightly. There is a high burden of proof, and even meritorious asylum applications are often denied.

Opponents of immigration reform often admonish immigrants to simply “wait in line.” However, there is no “line” or clear path to citizenship for most gay immigrants. The time has come for the United States to stop tearing gay families apart and apply the same principles of family unity to all marriages and partnerships — regardless of gender. To accomplish this, it is important for the LGBTIQ community to take part in the push to achieve fair immigration reform for all immigrants. After all, gay rights and immigrant rights are intertwined in the fight for basic human rights.

Shahid Haque-Hausrath is an immigration attorney in Helena, Montana and represents clients in removal proceedings and with visa applications. He devotes a large portion of his practice to free legal help for immigrants in the community, and has successfully represented numerous asylum applicants.

Progressives Must Hold Jon Tester Accountable for his DREAM Act Vote

“Democracy is a device that insures we shall be governed no better than we deserve.” — George Bernard Shaw

“You done screwed up this time.” — Anonymous.

On Saturday, the U.S. Senate failed 800,000 young men and women who wanted nothing more than to get a college education or serve their country in the military.  For those of you who are unfamiliar with the DREAM Act, I previously described it as follows:

The DREAM Act would only benefit immigrant youths whose parents made the decision to bring them into the United States when they were minors.  I know many young men and women in Montana who would benefit from this law.  Most of them have lived the majority of their lives in the United States, and this is the only country they call home.  These are smart kids who want to step out of the shadows to improve their country and themselves.

The DREAM Act is not an amnesty program.  It creates a long path [seven or more years] towards citizenship for men and women who serve our country in the military or go to college.  If they commit any crimes or dropout, they lose all the benefits of the program.

Passing this bill makes sense for national security and the economy.  The Pentagon needs to increase military recruitment, and has put passage of the DREAM Act high on its strategic mission for this year.  In addition, it makes sense to educate our young immigrant population and make them productive members of the workforce.

Despite the fact that Republicans almost uniformly oppose the bill, the DREAM Act passed the House of Representatives with a vote of 216 – 198.  If Democrats held firm in the Senate, they would have had the votes they needed this weekend to break a Republican filibuster.  Republican Senators Richard Lugar (R-Ind.), Lisa Murkowski (R-Alaska) and Bob Bennett (R-Utah) broke with their party to vote for the bill.  However, five Democratic Senators voted with Republicans to block the DREAM Act, and it failed on a 55-41 vote.

Two of the Democrats who voted with the Republican filibuster were our own Jon Tester and Max Baucus.  (Senators Ben Nelson (D-Neb.), Mark Pryor (D-Ark.), and Kay Hagan (D-N.C.) were the other Democrats who voted against the bill.)

Few progressives feel that Max Baucus is accountable to them.  However, for many progressives who donated to Tester’s campaign and worked hard to get him elected, this vote was a huge betrayal.  This was not a difficult vote, or one that Tester needed “political cover” for.  Montana, like most other states, has a vocal anti-immigrant population.  However, Democrats from all but four states managed to do the right thing and vote for cloture.

Not only did Tester vote against the bill, but he issued a statement on Friday to pander to the anti-immigrant crowd, in which he actively mischaracterized the bill as “amnesty.”  Since his election, Jon Tester has buried his head in the sand about the importance of immigration issues to his progressive constituents and allies.  His vote was a calculated attempt to score points with the most racist and xenophobic Montanans — people who would never vote for Tester, but have been flooding his office with calls.  Tester believed that this would be a safe vote, and would barely garner any attention from progressives.

Last summer, Tester was one of only five Democrats who voted to take funding away from the Department of Justice to litigate the constitutionality of the Arizona SB 1070 law.  He received praise from right-wing hate groups, but this vote went largely unnoticed by progressives.  Tester likely banked on the same reaction this time.

He was mistaken, and it is possible that this mistake will cost him re-election in 2012.

Markos Moulitsas from the Daily Kos has vented his profound disappointment with Tester on his blog, stating:

Not only will I do absolutely nothing to help his reelection bid, but I will take every opportunity I get to remind people that he is so morally bankrupt that he’ll try to score political points off the backs of innocent kids who want to go to college or serve their country in the military.

Tester’s Twitter account (@jontester) has been flooded with complaints from Montana constituents.  Don Pogreba, a Montana activist, shared his frustration on his blog.  In speaking to friends and colleagues here in Montana, I have heard over a dozen staunch progressives state that they will no longer support Jon Tester for re-election.  Many have called his office and asked to be taken off all of his contact lists.  I am among them.

As I said before, the DREAM Act shouldn’t have been a difficult vote.  It was a vote acknowledging the basic human rights of immigrants who came here as children and cannot be blamed for their lack of immigration status.  While the larger comprehensive immigration reform debate will require careful thought and debate, this bill was an easy starting point, simply acknowledging that we have no interest in deporting youth who committed no wrongdoing and are — for all intents and purposes — Americans.

This is not an abstract issue for me, or for many other progressives in this state.  I have pro bono clients who were counting on the DREAM Act to allow them to live their lives without fear of deportation to a country they don’t remember.  One of them, Carlos Rivera, spoke to John Adams of the Great Falls Tribune about his dilemma.  John Adams wrote about him here and here:

Rivera, a 27-year-old international business student at the University of Montana, is facing deportation. Rivera’s mother brought him to the U.S. in1988 when he was just 6 years old. He’s been in the country ever since. By all accounts Rivera is an upstanding young man who has forged a successful career in business and is on his way to completing his college degree.  But last year he came to the attention of immigration officials and now he’s facing the prospect of returning to a country he hardly even remembers.

. . .

I can say from interviewing Rivera that he’s not looking for a free ride. He wants to earn his degree and become a productive member of society just like every one of his American classmates. He grew up in the United States from the age of six and has thought of himself as a U.S. citizen his entire life.

Now that the DREAM Act has failed, it has little chance of being passed for at least another two years.  Next year, Carlos and I will appear before an Immigration Judge and Carlos may be removed from the United States — the only country that he calls home.  There are many other men and women like Carlos here in Montana, but they cannot come forward with their stories.  They have been waiting for the DREAM Act for a long time.  They cannot vote, but they nevertheless counted on the compassion and understanding of their state’s elected officials.

Jon Tester turned his back on Carlos and 800,000 other young men and women for political expediency.  If our elected officials are to have any accountability for their actions, then they must answer to us when they fail to protect our values.

Some Democrats in Montana have engaged in contortions to defend Jon Tester from being held accountable for his reprehensible vote.  Matt Singer posted an article on his blog titled:  “Jon Tester was Wrong on DREAM, but Markos is Wrong on Tester.”  Singer acknowledges that Tester’s stance on the DREAM Act and other immigration issues is wrong, but doesn’t believe that Tester can be blamed.  Singer offers several unsatisfactory arguments in Tester’s defense:

[Tester’s vote] isn’t a surprising one. I think I first criticized Jon’s stance on immigration about a year after he took office. His vote on DREAM came as little surprise to me. He’s been (in my view) wrong on immigration policy as long as I’ve known him and Montana’s political environment has given him no incentive to rethink his stances.

It goes without saying that a disgraceful vote is no less troubling just because it is expected.  Progressives who have been working on immigration issues in Montana have long been aware that Tester was on the wrong side of this issue — and on the wrong side of history.  In letters to constituents, he has stated that immigrants should “wait in line,” that he is “opposed to amnesty for these folks,” that he supports English as a national language, and that he opposes “sanctuary cities.”  His statements on immigration read as if they were copied and pasted from the Federation for American Immigration Reform, a hate group with ties to white supremacists.

However, Singer is mistaken that Montana’s political environment has given Tester no incentive to rethink this stances.  In Montana’s 2009 legislative session, over 10 anti-immigrant bills were proposed.  The cumulative effect of these bills would have been identical to Arizona’s SB 1070.  I wrote about these bills extensively as I worked with the Montana Human Rights Network and the ACLU to defeat them.  All of these bills were ultimately rejected by the Montana legislature, with Democrats taking a party stance opposing these prejudiced and reactionary bills.  The Montana Democrats’ resounding show of disapproval for anti-immigrant legislation should have given Tester a reason to re-think his stances.

Tester also wouldn’t be the only prominent elected official to support immigration reform.  Governor Schweitzer has been vocal about the need for fair and comprehensive immigration reform, and he hasn’t suffered politically as a result.

Singer mistakenly believes that the progressive community failed to put any pressure on Tester to support the DREAM Act:

We Didn’t Do Our Job. To be honest, I had read one news story in Montana about the DREAM Act (and seen virtually no tweets or Facebooks about it) prior to the vote. John Adams wrote a great piece about a UM student who would be affected. But here’s the deal — you can’t fail to organize and build a campaign on an issue for something longer than a couple weeks if you genuinely want to move a U.S. Senate office. At the request of friends, I asked both Senators where they stood on this issue and got word early that they didn’t see eye-to-eye with me. Springing vitriol after a vote is unfair — especially to a friend.

While Matt Singer and Forward Montana have not made immigration a priority, others have been actively working on the issue in this state.  Progressives formed an informal coalition to work on immigration reform over a year ago, and while we lack the funding necessary to launch a large scale campaign, we have consistently lobbied Tester on the DREAM Act.  (Also, I cannot speak to who Singer follows on Facebook or Twitter, but my feeds were replete with posts about the DREAM Act.)

Several months ago, we were able to obtain a letter from former University of Montana President George M. Dennison, addressed to Tester, expressing his support for the DREAM Act.  We had some articles and op-eds in the newspapers.  Congressional visits were held in all major cities.  Patricia Decker, an immigration activist in Billings, organized a letter drop containing hundreds of names of constituents who supported the DREAM Act.  We held public events in Helena and Bozeman to inform the public about immigration reform issues, including the DREAM Act.  I spoke to progressives on numerous occasions to try and energize our base.

Could efforts have been stronger?  Absolutely.  Singer is right that there are almost no financial resources for immigration lobbying in Montana, and purely volunteer efforts only go so far.  If by criticizing the work that was done, Singer or his former organization intend to steer more resources to this battle in the future, that would be welcomed.  If you want to join the fight, by all means get off the sidelines.

However, progressives must move past the idea that Tester means well and simply needs to be “educated” on these issues.  He has been given every opportunity to learn more about these issues, but his mind seems to be made up.  Singer’s efforts to quell the recent uprising is counterproductive, because the vocal backlash against this vote might finally provide Tester with the incentive he needs to rethink his positions.  I’m sure that progressives who have withdrawn their support will be glad to return it if Tester’s ideals change.

Where Singer goes wrong is by arguing that  there should be no “litmus tests” to apply to Tester.  Underlying this statement is the unspoken idea that the DREAM Act wasn’t as important as it is being made out to be.  This was human rights legislation, for which progressives must draw a line in the sand.  There was no justification for voting against the bill, and progressives must stand for what they believe in.

Other non-justifications for Tester’s vote include: “Montana is Montana” and “Jon Tester is Jon Tester.”  I don’t think those were issues that progressives were confused about.

Singer is correct that progressives need to run for office and push their values and ideas.  However, that isn’t the only way that one’s voice can be heard in a democracy.  There is a more direct and immediate path to holding our representatives accountable — by exercising the power to vote.  In recent years, progressives have developed an aversion to holding politicians accountable for their actions, out of fear that change may bring a worse outcome.  This is a self-defeating cycle, ensuing that progress is never made.  If you are such an “insider” that Tester’s vote on the DREAM Act doesn’t make you disgusted enough to question your support for him, you may be part of the problem.

We need to let our representatives know how we feel about the positition they took on this bill.
Senate switchboard: 202 225 3121
Max Baucus:  max_baucus@senate.gov
Jon Tester:  jon_tester@senate.gov