As the nation rejoiced after the Supreme Court ruling on Obergefell v. Hodges, I recalled the celebrations at AILA’s 2013 annual conference in San Francisco on the day that the Supreme Court decided Windsor v. Connecticut. Windsor and subsequent Department of Homeland Security (DHS) directives made it clear that U.S. Citizenship and Immigration Services (USCIS) would recognize marriages of couples of the same sex for immigration purposes. However, while our clients no longer had to worry about physical separation and removal from their spouses or partners, they did have to suffer additional indignities if they lived in a state that refused to recognize their marriage. For that, we celebrate but also reflect on the bumpy path to equality.
As a measure of how far we have come, before 1990, being gay was a ground for inadmissibility. Before Windsor, we had to either file for asylum for our gay clients or see them separated from their partners as we scrambled for other options in the non-immigrant realm. While the US did not accord the right of marriage to same-sex couples, the absolute terror that many of our clients faced in their home countries due to their sexual orientation was real, and it was our job to help protect them.
I remember speaking at several forums about options for LGBT immigrants which seems so historical today. I also recall that as AILA’s USCIS Liaison Committee Chair in 2010-2011, we pressed USCIS to hold marriage-based I-130 petitions for same-sex couples in abeyance as marriage was legal in certain states. We argued that while it was inhumane to separate committed couples before they were allowed to marry in any US jurisdiction, it was draconian and bigoted to place someone married to a US citizen in removal proceedings after denying their I-130 petition. It was essentially an immigration policy which was in the same league as the over-150-year U.S. ban on naturalization for “nonwhites.”
At the Upper Midwest chapter conference in 2011, I brought that issue to my co-panelist, a USCIS adjudicator from Minneapolis, and he had that same look of empathy we got from USCIS headquarters, but the same line that they could not issue a blanket policy of holding these cases in abeyance. I loved doing that work because as with many of our actions, it was a fight both to keep people together and for basic justice. It was an unconscionable form of discrimination nationwide and USCIS was caught in that web of injustice. I was thrilled that AILA did its part to raise consciousness and move the universal arc one step closer to justice.
This spring I spoke on a panel with Ali Bushara, a Ugandan gay man who fled his country last year. We talked about his personal journey, but also the increasing persecution of gay people in many parts of the world such as Russia, which has codified laws to bar adoptions by LGBT members of society.
As my conversation with Ali and my unmarried LGBT clients continue to teach me, the role that AILA has played in seeking justice, equality and protection for LGBT immigrants cannot be set aside after this momentous decision. We should continue to write, speak and advocate on behalf of basic human rights and make sure that State Department reports are consistent with what we hear from our clients and colleagues.
Written by Mark Shmueli, Member of the AILA EOIR Liaison Committee and the Distance Learning Committee