The Double Closet: Homosexuality and Immigration Status

Jose Antonio Vargas is an openly gay, award-winning journalist who
 came out as an undocumented immigrant in the New York Times today

An absolutely stunning admission, made by Jose Antonio Vargas in a beautifully written op-ed editorial published today in The New York Times: he is an undocumented immigrant.

Here's an excerpt:

I decided then that I could never give anyone reason to doubt I was an American. I convinced myself that if I worked enough, if I achieved enough, I would be rewarded with citizenship. I felt I could earn it.

I’ve tried. Over the past 14 years, I’ve graduated from high school and college and built a career as a journalist, interviewing some of the most famous people in the country. On the surface, I’ve created a good life. I’ve lived the American dream.

But I am still an undocumented immigrant. And that means living a different kind of reality. It means going about my day in fear of being found out. It means rarely trusting people, even those closest to me, with who I really am. It means keeping my family photos in a shoebox rather than displaying them on shelves in my home, so friends don’t ask about them. It means reluctantly, even painfully, doing things I know are wrong and unlawful. And it has meant relying on a sort of 21st-century underground railroad of supporters, people who took an interest in my future and took risks for me.

Last year I read about four students who walked from Miami to Washington to lobby for the Dream Act, a nearly decade-old immigration bill that would provide a path to legal permanent residency for young people who have been educated in this country. At the risk of deportation — the Obama administration has deported almost 800,000 people in the last two years — they are speaking out. Their courage has inspired me.

There are believed to be 11 million undocumented immigrants in the United States. We’re not always who you think we are. Some pick your strawberries or care for your children. Some are in high school or college. And some, it turns out, write news articles you might read. I grew up here. This is my home. Yet even though I think of myself as an American and consider America my country, my country doesn’t think of me as one of its own.

It really is a must-read about what I call "the double closet," the experience of gay immigrants. Go read it now!

Recent media profiles of same-sex binational "Love Exiles"

Max Oliva, left and Jesse Goodman have left the United States
 in order to remain together

The Los Angeles Times is just one of several West Coast-based newspapers which have been doing stories on the impact of the Defense of Marriage Act recently.

On Monday, the Times published "Same-sex couples find rough road to immigration." A key excerpt:

When Jesse Goodman and his Argentine fiance left the United States in 2006 after an unsuccessful immigration battle, they expected that one day they would be able to return home to New York.


Goodman and Max Oliva had become used to finding temporary ways to be together. They had fallen in love quickly and planned on marrying but soon learned that, unlike similar situations with straight couples, their relationship wouldn't help Oliva stay in the country.


For a time, they relied on a mix of work permits and tourist visas to stay together. When the last permit was set to expire five years ago, they decided it was best to leave the U.S.


"We ran out of options," Goodman said.


While straight American citizens can obtain green cards for their spouses and fiances, the Defense of Marriage Act has precluded same-sex couples from receiving the same benefits.


In February, the couple was encouraged when the Obama administration announced it would no longer defend the act in court, saying it violates the Constitution's equal protection clause, a conclusion that two federal district courts had reached in 2009.


The announcement that the Obama administration would no longer defend the law was applauded by gay and lesbian activists.


But the administration has sent mixed signals about its intent to enforce the law, which has led to some confusion among same-sex couples as they try to navigate the immigration system.


Rather than continue waiting for a resolution to that issue, Goodman and Oliva decided to move forward with trying to return to the U.S. by filing a fiance visa petition for Oliva.


The couple expects that it will be denied. But they are prepared to go to court.


"I think we're right," Oliva said. "We're fighting against something that is unfair."

In addition to the Los Angeles Times, the San Francisco Chronicle also ran an article about a binational couple facing deportation. Theirs was titled "Defense of Marriage Act threatens his citizenship."

An excerpt:

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, have spent the last 19 years together, mostly in an apartment in San Francisco's Castro district. 

Makk gave up his career, started a business in San Francisco and invested in rental property, all to be with Wells and meet various visa requirements. Seven years ago, they married in Massachusetts. 

Starting June 13, Makk, 48, faces possible deportation if he remains in the country illegally when his current visa expires. If he leaves, he would not be readmitted, the couple would be all but permanently separated and Wells, who has severe health complications from AIDS, would be left without his spouse and sole caregiver. 

"We're at the end of our rope," said Wells, 55. "Ever since we met, all we've tried to do is be together. The focal point of our lives, everything we've done, is just so we could be together."

Law denies benefits

They face this quandary because the 1996 Defense of Marriage Act denies all federal benefits, including spousal immigration preferences, to same-sex couples. If Wells and Makk were heterosexual, they could apply for an I-130 visa, or spousal petition, which could allow Wells to sponsor Makk for permanent U.S. residency. 

President Obama and Attorney General Eric Holder said in February that they believe the Defense of Marriage Act is unconstitutional and would no longer defend it in court, but the administration is enforcing the law as required until it is repealed or struck down by the courts. It is under challenge in several states and will probably be decided by the Supreme Court. 

"It's devastating, the idea of him leaving in a couple of weeks and not being able to get back in," Wells said. After suffering a near-fatal heart attack and severe arthritis in his hips, Wells said he is unable to care for himself. "I don't know how I'm going to manage," he said. "My stomach is in knots." 

An estimated 54,000 bi-national same-sex couples live in the United States, according to the Williams Institute, a pro-gay think tank at UCLA. Not all of them are married.

Of course, frequent readers know that I myself am part of a binational couple, but was able to become a United Citizen through familial relationships in 2003. I'm on the board of directors of Immigration Equality, the national LGBT immigration advocacy group.

Sen. Kerry And 10 Others Send Letter Urging Immigration Equality

FOR IMMEDIATE RELEASE:  April 6, 2011

CONTACT: Whitney Smith (202) 224-4159   

Kerry Leads Fight for LGBT Immigration Equality

WASHINGTON, D.C.– Senator John Kerry (D-Mass.) today led 11 colleagues in a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano urging immigration equality for legally married same-sex couples who are currently discriminated against under the Defense of Marriage Act (DOMA).

“We applaud the President’s decision to no longer defend the Defense of Marriage Act in federal court,” the Senators wrote. “With DOMA as law, however, we are creating a tier of second-class families in states that have authorized same-sex marriage. The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen. We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court.”

“Immigration Equality, and the families we represent, are enormously grateful to Senator Kerry and his colleagues for calling on the Administration to keep our families together,” said Rachel B. Tiven, executive director of Immigration Equality, a national organization that works to end discrimination in U.S. immigration law.  “Unless USCIS changes course, real families will be impacted, and American citizens will be separated from their loved ones.  Maintaining the status quo for these families will mean forcing them apart, or into exile.  We call on USCIS to heed the advice of Senator Kerry, and the other signatories on today’s letter, and allow these loving, committed couples to remain together.”

In light of the Obama Administration’s decision to stop defending DOMA in federal court, the Senators urged:

• The Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation. 

• DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA. 

• The Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

The full text of the letter is below:

April 6, 2011

The Honorable Eric Holder                                         The Honorable Janet Napolitano
Attorney General                                                        Secretary
Department of Justice                                                 Department of Homeland Security
Washington, DC 20520                                              Washington, DC 20393

Dear Mr. Attorney General and Madam Secretary: 

We applaud the President’s decision to no longer defend the Defense of Marriage Act (DOMA) in federal court.  The law discriminates against a class of Americans, raising fundamental questions of over basic civil rights.  However, the administration is still enforcing DOMA, because it is the law of the land. 

Five states plus the District of Columbia, have granted same-sex couples the right to get married.  With DOMA as law, however, we are creating a tier of second-class families in these states that have authorized same-sex marriage. 

The same second-class status is imposed upon marriages between same-sex partners in which one spouse is not a U.S. citizen.  The new administration policy has created confusion and uncertainty in the immigration context.  In recent days, the administration issued conflicting statements about how it will consider immigration petitions from same-sex married couples seeking immigration benefits for a non-citizen spouse.  As of March 30, 2011, U.S. Citizenship and Immigration Services clarified that marriage-based petitions will be considered under current law, with DOMA preventing recognition of otherwise-valid and lawful same-sex marriages. 

We urge you to reconsider this position in light of the administration’s position that it will no longer defend DOMA in federal court. Specifically, we ask the Department of Homeland Security (DHS) to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation.  In addition, we ask DHS to exercise prosecutorial discretion in commencing and prosecuting removal proceedings against married noncitizens that would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.  We also call upon the Department of Justice to institute a moratorium on orders of removal issued by the immigration courts to married foreign nationals who would be otherwise eligible to adjust their status to lawful permanent resident but for DOMA.

Preserving family unity is a fundamental American value and is also the cornerstone of our nation’s immigration law.  Thank you for your consideration of this request. 

Sincerely,

John Kerry                              Patrick Leahy                          Barbara Boxer

United States Senator             United States Senator             United States Senator

Ron Wyden                             Christopher Coons                  Jeff Merkley

United States Senator             United States Senator             United States Senator

Kirsten Gillibrand                   Sherrod Brown                       Daniel Akaka

United States Senator             United States Senator             United States Senator

Daniel Inouye                         Sheldon Whitehouse               Frank Lautenberg

United States Senator             United States Senator             United States Senator

Hopes For Binational Couples Dashed As Discriminatory Policy Returns

Despite the good news from earlier in the week, the federal government has now re-affirmed it's policy of applying immigration law in a discriminatory fashion towards married binational same-sex couples.

The New York Times reports:

On Monday, Christopher S. Bentley, the chief spokesman for the immigration agency, confirmed in a statement that cases nationwide involving married gay couples had been suspended. What Mr. Bentley did not say was how long that hold might last and what issues the agency was seeking to clarify. 

But the elated reaction among gay advocates and couples was immediate. Describing Mr. Bentley’s statement as “a darn big deal,” Rachel B. Tiven, the executive director of Immigration Equality, called it “the first domino to fall” for gay American citizens with foreign spouses. 

Ms. Tiven said she understood that immigrants in married gay couples could now apply for green cards and instead of being automatically denied, their cases would be suspended until the courts decided the validity of the marriage act. 

Word also went out across the country. In Princeton, N.J., Josh Vandiver and Henry Velandia, in the middle of a public forum on immigration issues, embraced and cheered. They said they had heard from their immigration lawyer that the agency’s announcement might mean at least a temporary reprieve from deportation for Mr. Velandia. 

Mr. Vandiver, 29, is an American citizen and a political science graduate student at Princeton. He and Mr. Velandia, 27, who is from Venezuela, were married last August in Connecticut, one of the states that recognize same-sex marriages. Their application for a green card for Mr. Velandia was recently denied, and he is facing deportation as early as May. 

But on Tuesday, Mr. Bentley issued a new statement, saying that Citizenship and Immigration Services “has not implemented any change in policy and intends to follow the president’s directive to continue enforcing the law.” 

Mr. Bentley said the agency’s field offices had suspended cases for a short period, perhaps a week or two, while lawyers clarified a “narrow legal issue” concerning the marriage act. He said the agency would probably resume action on same-sex marriage cases in coming days and would continue to deny immigration status to foreigners based on those marriages. 

Immigration lawyers tried on Tuesday to sort out the meaning of the events. 

“We have to be very cautious,” said Lavi S. Soloway, a lawyer who represents Mr. Velandia and Mr. Vandiver. He said gay couples should continue to understand that “if they file for immigration status, they may be putting themselves at considerable risk of deportation.”

If you are in a binational relationship or need more information about the effects of immigration law on LGBT people, I urge you to check out the Immigration Equality (and Immigration Equation Action Fund) website. (Full disclosure: MadProfessah is on the board of directors of Immigration Equality and the Immigration Equality Action Fund.)

Immigration Equality Hails CIS Policy Change

FOR IMMEDIATE RELEASE March 28, 2011

CONTACT: Steve Ralls
(202) 347-7007 / sralls@immigrationequality.org

IMMIGRATION EQUALITY HAILS GOVERNMENT DECISION ALLOWING LESBIAN AND GAY COUPLES TO FILE GREEN CARD APPLICATIONS

ANNOUNCEMENT FOLLOWS CALLS BY GROUP TO END SEPARATION OF FAMILIES

WASHINGTON, DC – Immigration Equality, the national experts on immigration rights for lesbian, gay, bisexual and transgender people, hailed an announcement today from U.S. Citizenship and Immigration Services (USCIS) that the agency will allow Americans with spouses from abroad to apply for green cards while courts weigh constitutional challenges to the federal Defense of Marriage Act.

“USCIS has issued guidance to the field,” USCIS Spokesman Christopher Bentley announced, “asking that related cases be held in abeyance while awaiting final guidance related to distinct legal issues.”

“Today’s statement is the first domino to fall for LGBT Americans with foreign national spouses,” said Rachel B. Tiven, the group’s executive director. “As Immigration Equality noted in our letters to both the Department of Homeland Security and the Department of Justice, we believe that no spousal application should be denied until DOMA’s constitutionality is settled. Immigration Equality has been fighting for LGBT immigrant families since 1994. In that time we have counseled more than 10,000 families – and for them, today’s news is a sign that relief is finally on the way.”

Last week, Immigration Equality’s legal team filed a green card application on behalf of Edwin Blesch, an American citizen, and Tim Smulian, his South African husband. Despite being legally married in South Africa – a marriage recognized in Edwin’s home state of New York – the couple has struggled to remain together. Edwin struggles with failing health and increasingly depends on Tim as his primary caretaker. The couple joined Immigration Equality in hailing today’s announcement.

“Every day, we live with the very real possibility that, despite following every law and every policy of the United States, Tim will be forced to leave the country, and I will be left without my caretaker and the love of my life,” Blesch said in a statement. “Today’s news gives us great relief, and great hope that we may soon be able to put that worry behind us. For the first time, we can begin to plan the rest of our lives together without fear that we will be torn apart.”

Couples who believe they may be impacted by today’s decision are encouraged to contact Immigration Equality’s legal team for free, confidential advice at www.immigrationequality.org/contactus.php.

# # #

Immigration Equality is a national organization that works to end discrimination in U.S. immigration law, to reduce the negative impact of that law on the lives of lesbian, gay, bisexual, transgender and HIV-positive people, and to help obtain asylum for those persecuted in their home country based on their sexual orientation, transgender identity or HIV-status. Through education, outreach, advocacy, and the maintenance of a nationwide network of resources, we provide information and support to advocates, attorneys, politicians and those who are threatened by persecution or the discriminatory impact of the law.

Married Binational Lesbian Couple Has Deportation Suspended

Lavi Soloway of the Stop The Deportations project is reporting a monumental development in LGBT immigration reform: the very first decision by a U.S. immigration judge to suspend a deportation based on the legally married status of a same-sex couple.

Monica Alcota and Cristina Ojeda of Queens are the first married LGBT couple to argue in court that a pending deportation should be terminated since the Obama administration’s February announcement that it would no longer defend section 3 of the Defense of Marriage Act, according to their attorney. Alcota, a citizen of Argentina, wed her American wife last year in Connecticut but has continued to face removal proceedings.


At a Tuesday morning hearing in New York Immigration Court, a U.S. Immigrations and Customs Enforcement attorney indicated that the government was willing to adjourn the deportation proceedings against Alcota while Ojeda proceeds with a green card petition on behalf of her noncitizen spouse. The judge agreed with the government attorney’s recommendation and asked the couple for an update on Ojeda’s alien relative petition by December.


“It definitely brings us more hope,” Ojeda told The Advocate of the hearing. “It’s the first time someone has been willing to let us pursue our case and believes that we should be treated equal."


The couple’s attorney, Lavi Soloway, said that while there was no clear indication that the government's Tuesday decision has broader policy implications on other immigration cases involving married, binational gay couples, the outcome is nevertheless “tremendously significant.”


“It means that for the first time in a deportation proceeding, the judge and the government have looked at a married gay couple and considered fairly that they ought to have an opportunity to pursue a marriage-based immigration case, given the changing legal landscape," Soloway said.

This is a very important development, but it should be noted that immigration cases are very fact-dependent and venue-specific. An immigration judge in another state could hear a nearly identical case and come to a different result. Soloway is looking for other binational couples in other immigration situations such as where the foreign national is on a valid non-immigrant visa (i.e. H-1(B) for employment or F or J for students) legally married to a United States Citizen. You can contact them directly at stopthedeportations [at] gmail.com.

DOJ Asked To Suspend DOMA-Related Deportations

Immigration Equality has written the Department of Justice to request that same-sex couples who would be able to be get a green card except for DOMA's provisions be allowed to stay in the country pending the legal resolution of its constitutionality:

Dear Attorney General Holder:
Thank you for the courageous action you took on February 23, 2011 in announcing that the Department of Justice (“DOJ”) would no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) in federal law suits.  We applaud your decision and believe that this is a critical step forward in ensuring equality under the constitution for all Americans and their families.

We write to request that until there is a final resolution in the DOMA litigation, you instruct the Board of Immigration Appeals to hold in abeyance the appeals of immigrant visa petitions (I-130) filed by American citizens or lawful permanent residents on behalf of their lesbian or gay spouses. We ask further that you instruct the Executive Office for Immigration Review (“EOIR”) to grant long continuances in removal proceedings where the foreign national could adjust status based on his or her marriage to a U.S. citizen or lawful permanent resident were it not for DOMA. While we understand that your letter explained that until there is a final resolution in the DOMA litigation, the Administration would continue to enforce DOMA, staying removals is the only way to maintain the status quo for these families pending the final resolution of the DOMA cases. Where the validity of a law has been so clearly called into question the most appropriate response for the Administration is to hold cases directly affected by the law.

Of the many rights that flow from marriage, none is more immediate than the right to petition for lawful permanent residence for a foreign-born husband or wife. Every day American families are town apart because Section 3 of DOMA prevents the foreign spouse from obtaining lawful permanent residence. The EOIR immigration judges are employees of DOJ and it would be unjust for immigration judges to continue to order removals of the lesbian and gay spouses of Americans by enforcing a law that you have determined is unconstitutional. Staying removals of gay and lesbian spouses is the only way to ensure that the constitutional rights of American citizens are not being violated pending the final resolution of the DOMA cases. Maintaining the status quo for these families at this point will also preserve judicial resources by preventing potentially hundreds of immigration-based federal DOMA challenges in individual cases

In addition, openly gay immigration attorney Lavi Soloway, has sent out a press release announcing that he will be asking the federal government to stop deporting bi-national couples:

On Tuesday March 22 in a New York Immigration Court, Monica Alcota, a citizen of Argentina, and her wife, Cristina Ojeda, an American citizen, will request that an Immigration Judge terminate removal proceedings so that the couple may fully pursue a marriage-based green card process with U.S. Citizenship and Immigration Services free of the threat of removal. This is the first time a married same-sex couple will appear in court to seek termination of such proceedings since the Obama administration reversed its position on Section 3 of the Defense of Marriage Act (DOMA) on February 23, calling it unconstitutional and announcing that it would not defend DOMA in pending and future federal court challenges.

Cristina Ojeda and Monica Alcota have been together since July 2008 and live in Queens, New York. In August 2010 they married in Connecticut. Cristina filed a marriage-based alien relative petition on behalf of Monica in September 2010. That petition is currently pending before U.S. Citizenship and Immigration Services.  Alcota came to the United States in October 2000. She is a law-abiding, hard-working and talented antiques restorer and devoted, loving wife to Cristina.

The couple's lawyer, Lavi Soloway, will argue that removal proceedings should be terminated consistent with the Immigration and Customs Enforcement's long-standing policy of prosecutorial discretion which favors family unification and the accomodation of sympathetic humanitarian circumstances. ICE and the Court should consider the rapidly changing landscape of DOMA. That changing landscape includes the Obama administration's new position on DOMA which is expected to dramatically alter the course of future litigation against DOMA, but it also includes other significant developments.

On March 16, 2011 a bill to repeal DOMA, the Respect for Marriage Act, was introduced in the House by Rep. Jerrold Nadler (D-NY) with 105 co-sponsors and in the Senate by Senators Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY) and Patrick Leahy (D-VT) with the expected support of a total of 20 co-sponsors in total.  This historic legislation seeks to end discrimination against same-sex married couples by the federal government, including for immigration purposes.

In other courts around the country, DOMA is under attack by multiple challenges. In two decisions this past July, Boston Federal District Court Judge Joseph Tauro ruled that DOMA was unconstitutional. Those cases are now on appeal at the First Circuit Court of Appeals. The Department of Justice has withdrawn from defending Section 3 of DOMA in those cases saying that it would now tell that court that it believed the statute was unconstitutional.

Termination of deportation proceedings would not restrict the Department of Homeland Security from re-initiating proceedings at a later date; it would however, free this couple from attending hearings and defending against an on-going prosecution of deportation proceedings and it would free resources of an overburdened immigration court.

Immigration Equality Releases LGBT Asylum Stats

Immigration Equality, the national LGBT immigration advocacy organization (on whose board MadProfessah sits) announced today that they had won over 101 asylum cases in 2010:

Immigration Equality, a national organization that helps obtain asylum for individuals persecuted in their home country based on their sexual orientation, gender identity or HIV-status, announced today that its legal and pro bono teams won a record 101 cases in 2010.  An overwhelming number of those wins – 38 - were for clients from the Caribbean, with 28 of those for individuals from Jamaica.  Other cases included 24 asylum seekers from Central and South America; 16 from Eastern Europe (including seven Russian clients); nine from the African continent and five from the Middle East. 

Immigration Equality maintains the largest pro bono network of attorneys – in addition to its in-house legal staff – dedicated solely to securing asylum for lesbian, gay, bisexual and transgender asylum seekers.  Firms providing pro bono representation for Immigration Equality clients include Dewey & LeBoeuf; Jones Day; Kirkland and Ellis; Latham Watkins; Ropes and Gray; Skadden; Weill  Gotshal; and White & Case. In addition to the 2010 wins announced today, the organization has 97 additional cases, filed in 2010, which are awaiting a ruling, as well as several cases filed prior to 2010. 

“For too many lesbian, gay, bisexual and transgender people, the world remains a dangerous place,” said Rachel B. Tiven, the group’s executive director.  “In many cases, the clients who turn to Immigration Equality for help are literally running for their lives.  They have been mistreated and beaten by authorities in their home country, disowned by their families and ostracized by society.  By offering them safe haven, the United States is not only saving their lives, but benefitting from the talent, skills and service these asylees bring to our country.  We are proud, and honored, to help them begin life anew here in their adopted homeland.”

[...]

Immigration Equality 2010 Asylum Wins by Country *

Jamaica                        28
Russia                          7
Grenada                       4
Peru                             4
Uzbekistan                  4
Venezuela                    3
Mexico                         3
Ghana                          3
El Salvador                  3        

* Countries from which Immigration Equality had 2 or fewer wins are not listed.
Total 2010 wins include six individuals who won withholding of removal or secured relief under the Convention Against Torture Treaty (CAT).

Notice that 2 of the top 3 countries are in the West Indies. In fact, Grenada is the country where I was born.