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The U.S. Is Becoming a Friendlier Place for Gay Residents -- Unless They're Immigrants

Even in the states where same-sex marriage is legal, same-sex spouses of U.S. citizens are not eligible for green cards because of the Defense of Marriage Act.
 
 
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Last month, Arizona Sheriff Paul Babeu resigned as the Arizona co-chair of Mitt Romney's campaign. The resignation came after Babeu's ex-boyfriend, an undocumented Mexican immigrant named Jose Orozco, accused Babeu of threatening deportation.

The scandal seems to have had little impact on Romney's campaign; he picked up Arizona, and then Michigan, Washington and more than half of the Super Tuesday states. For his part, Babeu is continuing his campaign for a congressional seat. One would hope that he is also doing some soul searching. When the juicy drama has settled for onlookers (if not for those involved), LGBT immigrants -- a population marginalized not once, but twice -- are likely to be pushed once again into the shadowy space where mainstream media do not bother to reach.

On the whole, America is becoming a friendlier place for gay and lesbian individuals to live. Recently Maryland became the eighth state in the country to legally recognize same-sex marriage. The repeal of "Don't Ask Don't Tell" last year, the recent ruling against Proposition 8 in California, the legalization of same-sex marriage in Washington, and the New Jersey legislature's passing of a similar bill last month (although vetoed by Gov. Chris Christie), and last year's ABC News/Washington Post poll showing that the majority of Americans now support same-sex marriage are all evidence of a more tolerant country for LGBTQ residents.

However, for gay immigrants, many aspects of life in this country are still quite grim. Even in states where same-sex marriage is legalized, same-sex spouses of U.S. citizens are not eligible for green cards because the Defense of Marriage Act of 1996 prohibits same-sex couples from receiving federal benefits, which include immigration benefits.

Although DOMA has been ruled unconstitutional by several federal and district judges, it will remain law until it is ruled unconstitutional by the Supreme Court or repealed by Congress. A little more than a year ago, Attorney General Eric Holder announced that the Department of Justice would not defend in court the constitutionality of Section 3, which defines marriage as only between a man and woman. However, according to Steve Ralls, spokesperson for the non-profit Immigrant Equality, the federal government continues to decline marriage-based green-card petitions filed on behalf of a same-sex spouse citing DOMA.

Happily Ever After Until the Expiration Date

Thirty-six thousand binational same-sex couples live in the U.S., according to the Williams Institute, a research institution affiliated with UCLA's School of Law. None of these couples, who together are raising almost 25,000 children, are eligible for permanent immigration options available to different-sex spouses.

"Most couples, for many many years, have relied on temporary visas to remain together," said Ralls. Many of them use tourist visas, which allow them to stay six months in the U.S. and six months abroad, and some use student visas. "The really lucky ones have an employment visa which is a little more long-term," said Ralls, "though we have seen as the recession took hold of the last two years, that more and more couples are losing their employment visas."

According to Ralls, around 100 couples contacted Immigration Equality about the issue of visa expiration a year or two ago, and this year, the number is probably going to be around 500. The total number of calls Immigration Equality received in 2011 from binational couples looking for legal advice totaled 1,431, a 142 percent increase from 2010.

Judy Rickard and Karin Bogliolo have been traveling and living in two countries since they met in 2005. Bogliolo, a citizen of the UK, had to leave Rickard, who lived in San Jose, California, every six months in the first four years of their relationship. Once she had to stay out of the U.S. for as long as nine months. Frustrated, Rickard decided to take an early retirement so she could travel with Bogliolo, despite the reduced pension that decision entailed.

"Once a man and woman get married, they get 1,138 federal rights. And Karin and I get very few of them. The ones that we want most now are my rights to sponsor my spouse for immigration, and we can't get them," said Rickard. Bogliolo's green card application was rejected in 2009. The couple got married in Vermont last year and filed another application but they are almost certain it will be denied again.

In some cases, even when governments and lawmakers at the state and county levels are sympathetic with binational same-sex couples, their hands are tied because immigration rights are federal benefits.

Dummerston, Vermont passed a resolution two weeks ago urging the federal government to allow Takako Ueda to stay in the town with her wife, Frances Herbert. Ueda, a Japanese national who was on a student visa for years, is now facing deportation. Dummerston's congressional delegation also wrote a letter in support of the couple's appeal. However, neither the town's Selected Board nor the congressional delegation has the legal power to grant Ueda immigration relief directly.

At the federal level, the Department of Homeland Security announced in November of last year that a "working group" including an LGBT liaison had been formed to review pending deportation cases, identifying and closing "low priority" cases in the process. A gay couple in New Jersey and a lesbian couple in New York were relieved from deportation by the DHS last year.

Last month, with the help of Sen. Charles Schumer, Sen. Kirsten Gillibrand and Rep. Tim Bishop, Tim Smulian, a native South African, was granted a one-year reprieve to stay in the U.S. to take care of his HIV-positive husband, Edwin Blesch, in their home in New York. With support from Rep. Nancy Pelosi, Anthony Makk, an Australian national who was facing deportation, was granted a two-year deferred action in January from the DHS and is able stay with his husband, Bradford Wells, in San Francisco.

However, according to Ralls, these relieves are very rare -- Makk and Wells are the first gay couple who were granted a deferred action -- and all are temporary solutions. For same-sex binational couples, as long as discriminatory immigration laws stay the same, they will not have the permanent immigration options that heterosexual binational couples have. When their visas expire, they may have no legal recourse to stay with their loved ones, even if DOMA is repealed in the future.

'My Family, Together'

So, what work is ahead for LGBTQ immigrants and activists? Immigration Equality is currently working with members of Congress on an amendment to the Immigration and Nationality Act (INA) and the Uniting American Families Act (UAFA).

UAFA has been introduced to both the House and the Senate open up permanent immigration options for LGBTQ immigrants. It simply inserts the phrase "or permanent partnership" after "marriage" in the paragraph that stipulates eligibility of green card petitions, the term "permanent partner" in section 101(a) of INA, and adds the definitions of "permanent partner" and "permanent partnership" to section 101(a). Because these definitions do not require the parties of the permanent partnerships to be of the opposite sex, UAFA, if passed, will allow U.S. citizens to petition for the green card on behalf of their same-sex permanent partners as well.

According to Ralls, UAFA is "very carefully crafted not to run afoul with DOMA." It does not recognize gay and lesbian partners as "married spouses," but, said Ralls, "by simply amending and including a definition, the members of Congress who wrote the legislation believe that it could actually implement it even if DOMA is not repealed."

Meanwhile, while UAFA is pending in Congress, activists are working with same-sex binational couples to urge President Obama to instruct the DHS to hold the green card applications filed on behalf of same-sex partners of U.S. citizens in abeyance so that the alien partners will be able to maintain their legal status in the country before immigration laws are amended or DOMA is appealed.

Last week, Immigration Equality launched a new campaign in response to the Obama administration's decision to continue denying green card applications filed on behalf of same-sex partners. The organization asks same-sex binational couples to record and send in videos to the president. The campaign received tremendous support from the LGBTQ community and its supporters. Within an hour of the campaign's launch on Facebook, more than 500 people had "liked" the page. The organization hopes that these personal stories will sway the Obama administration on this issue.

And those who long to be with their loved ones will continue their journey, for as Rickard said in an email, "When you find the one you love, you do what you have to do to keep her."

Jin Zhao is a freelance journalist, multimedia producer and photographer. Her work has appeared in the Nation and on AlterNet. Follow her on twitter @jinealogy and visit her blog thingsyoudontknowaboutchina.com.
 
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