In June 2013, SCOTUS helped turn a page in the queer community’s struggle for civil rights. By striking a pertinent portion of the indefensible Defense of Marriage Act (DOMA), the Justices cleared the way for LGBTQ citizens of this country to strive for full equality under the law – in all 50 states. Almost two years later, it’s time to take stock of the landscape.
Within the immigration world there is no question that the state of our move toward equality has strengthened. Sadly however, full equality is not yet at hand. The Immigration and Nationality Act (INA) and discriminatory laws and practices at both the federal and state levels are responsible for denying our basic Constitutional rights, those of liberty and justice.
Right now many same sex spouses of US citizens who fled their respective countries out of fear of persecution and subsequently entered the U.S. without authorization have to travel back to the same countries they were harmed in order to obtain a waiver for their inadmissibility even though they have an approved Petition for Alien Relative filed by their US citizen spouses. These waivers (I-601A’s) even if approved by the Department of Homeland Security (DHS) are subject to further scrutiny by the Department of State (DOS) visa officers. This review may take many weeks or even months which is often a nightmare for the visa applicant who had to leave his/her American family behind and are then faced with days, weeks, or months in a country with a homophobic culture.
In Mexico for instance – the U.S. Consulate in Cuidad Juarez is requiring the Acid Fast Bacilli (AFB) TB test for anyone with HIV, which takes between 6-8 weeks to complete and read. This requirement is outrageous on so many levels. The applicant will potentially delay valuable medical care for his/her HIV status while being subjected to severe stress living in a country that is violent towards his identity as a gay individual.
Some DOS Visa Officers fail to comply with their own guidelines and regulations. They expose same sex spouses’ identities or their finances by failing to discreetly adjudicate their applications. There are many reports of bias, pointed questioning and unnecessary requests for evidence of bonafides of the relationship. In a recent case out of Ecuador, a fiancé visa applicant was asked to provide joint documents such as U.S. bank accounts and property deeds and birth certificates of children with the visa applicant’s name on them, as well as a detailed explanation as to why he had never been to the U.S. Special thanks go to AILA attorneys Noemi Masliah, Chair of the LGBT Working Group and a member of the DOS Liaison Committee, and Daniel Parisi, another member of the DOS Liaison Committee for offering immediate help in resolving this particular case.
Other issues such as parentage in the LGBTQ community may now be matters of first impression. Just recently a same sex couple in Tennessee had to fight a court battle to have their names on their biological child’s birth certificate just because the state failed to recognize their marriage held in New York. Surrogacy pregnancy, both in the US and abroad, also raises very interesting legal questions as to parental and also derivative citizenship rights in various states.
Our movement for social justice is unstoppable and indeed history is on our side. Before the end of the current SCOTUS term, we expect a decision on our constitutional right to marriage in all 50 states. I’m both optimistic and anxious as we inch closer to that date – and am equally sober to the fact that our fight for equality, particularly within immigration law and policy, will continue regardless of the ruling by SCOTUS.
Written by Ally Bolour, Member, AILA Media Advocacy Committee