Over the last few years, Lesbian, Gay, Bisexual, Transgender, and Questioning (“LGBTQ”) rights in the U.S. have come a long way, but LGBTQ immigrants in the U.S. still encounter unique obstacles to securing protection and safety, especially when matters involve the immigration court or immigration detention systems. LGBTQ immigrants still face discriminatory attitudes in the immigration court system, as well as at USCIS, but things are improving and leaps have been made in the ongoing positive adjudications of same-sex marriage-based residency applications, same-sex fiancé visas, and gender identity or sexual orientation based asylum applications. Nevertheless, many changes are still needed, and our legal system has yet to catch up with the growingly progressive cultural environment. Alarmingly, approximately one in four substantiated incidents of sexual abuse in the immigration detention system involves a transgender individual. Footnote 1. And U.S. courts have barely touched the subject of same-sex parental rights as they relate to assistive reproductive technology (including IVF and surrogacy). This month, in honor of PRIDE MONTH, I present some special considerations and unique issues facing the LGBTQ community as they relate to immigration law, including some past victories and future battles that are only just beginning.
A. Immigration Through Same-Sex Spouse
Now that the U.S. Supreme Court has struck down the Defense of Marriage Act (DOMA), same-sex bi-national couples may apply for marriage-based applications in the same fashion opposite-sex couples always have. This means that U.S. Citizens and Lawful Permanent Residents can petition for their foreign-born, same-sex spouses to achieve immigration status, such as residency (green cards). This also means that some visa holders can get a derivative visa for their same-sex spouse as well.
B. Immigration for Same-Sex Fiancés
The fiancé visa, also known as a K-1 visa, is used by a U.S. citizen to bring a foreign-born fiancé to the United States for the purpose of getting married. Similar to the section above, U.S. Citizens may now petition for their same-sex fiancés who are abroad.
Prior to the Obergefell v. Hodges ruling, same-sex couples had the additional burden of having to prove that once the fiancé entered the U.S. on the K-1 visa, the couple would be able to marry in a state allowing same-sex marriage. Now that all states are required to issue marriage licenses to same-sex couples, the extra burden has been lifted.
But why wouldn’t you just marry your spouse abroad and save the visa step altogether? Many same-sex couples from countries who have yet to legalize same-sex marriage chose the K-1 visa option as an alternative to marrying abroad and petitioning through a consulate given that the foreign country would not otherwise recognize the relationship. The K-1 visa allows for the marriage to take place after entry in the U.S., thus avoiding the issue faced by bi-national couples who reside in a country that won’t allow them to marry.
C. LGBTQ Refugees and Asylees
If a person suffered past persecution or fears future persecution in his/her home country due to his/her sexual orientation, gender identity, or HIV-positive status, he or she may be eligible to apply for asylum. Until recently, there was very little precedent in the area of LGBTQ and HIV-based asylum law. However, since 2003, the number of precedential LGBTQ asylum cases has more than tripled. Fortunately, some Circuits (such as the 9th Circuit) have continued to expand the legal understanding of asylum for LGBTQ individuals, but many other circuits have taken narrower viewpoints on the subject.
Generally, successful asylum claims based on gender identity or sexual orientation come from individuals from countries where LGBTQ individuals are targeted and where there is a lack of legal protections in place. In many Middle Eastern and African countries, being gay is illegal and often punishable by imprisonment or death. Many asylees also come from South and Central American countries, where being gay or transgender is viewed as unacceptable by society as a whole.
D. Immigration Detention and Transgender Immigrants
Immigrants who are in deportation proceedings are often (although not always) detained for part or most of the process. LGBTQ immigrants, and in particular transgender individuals, are at a much greater risk of abuse and harassment in these facilities. This is because the protocol to consider housing for detainees is not decided on self-assessed gender, but instead on physical anatomy or legal documentation. As a result, transgender detainees are often at risk of physical and psychological abuse when placed in all male or all female facilities that do not reflect their gender identity nor choice.
In 2015, ICE issued guidance aimed at improving conditions for transgender people, including taking into account their individual needs during detention, such as preferences about housing. The concept of “transgender units” in detention center has been presented as a problem solver (with Northern Texas’s 36 bed “Prairieland” unit as the example, which is the second unit of its type and opened in early 2017), but human rights groups are worried about this solution and argue that placing transgender people apart from the general population could stigmatize them, even if it seems to offer safeguards in principle. Advocates also worry that detainees being transferred to Prairieland from elsewhere in the country may find it harder to connect transgender individuals with legal help. Aaron Morris, executive director of Immigration Equality, an LGBTQ immigrant rights group, has argued that “There is a danger that using this as a safety mechanism will also seem quite punitive to people, as they will not self-identify.”
E. Children of Same-Sex Couples (Assisted Reproductive Technology)
As a result of DOMA being struck down, stepchildren acquired through same-sex marriage qualify as beneficiaries or for derivative status from the residency applications mentioned in Section A above. But what of same-sex couples wanting to have children through Assisted Reproductive Technology (including IVF or surrogacy)?
The U.S. Department of State (“DOS”) determines whether a child born abroad to a U.S. citizen parent acquired U.S. citizenship at birth. A child born abroad may acquire U.S. citizenship at birth if the parent/parents of the child meet the conditions prescribed in the Immigration and Nationality Act (“INA”). The DOS interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent for the child to acquire U.S. citizenship at birth. In specific, a U.S. citizen father must be the genetic parent of the child and meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth. And a U.S. citizen mother must be the genetic and/or the gestational and legal mother of the child at the time and place of the child’s birth and must meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth—Gestational mother meaning the woman who carries and gives birth to the child.
So what’s the problem? In the case of bi-national same-sex couples, the U.S. Citizen spouse is often not related through DNA to the child that’s to be born. For example, if a lesbian bi-national couple decides to use a sperm donor and further decides that the foreign spouse will supply the egg and/or carry the child, the U.S. Citizen spouse is not biologically related to the child and would thus be unable to give automatic citizenship to the child. DOS further states that even if local law recognizes a surrogacy agreement and finds that the U.S. parent is the legal parent of a child conceived and born abroad through assisted reproductive technology if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.
Most of these laws were written decades ago, back when surrogacy and fertility treatments were less common, and certain techniques were unheard of. Legislators likely did not imagine possibilities where no actual genetic relationship exists between parent and child. This area of law is still evolving, and this particular legal battle is only just beginning.