Immigration Reform is a Queer & Trans* Human Rights Issue

Images via Art from Julio Salgado

Last summer, I lived the queer lady law student dream and worked at the National Center for Lesbian Rights (NCLR). Most of my work focused on the Immigration Project and all of the myriad ways that homophobia and transphobia can combine to make queer and trans* immigrants bear the brunt of the U.S.’s already racist and xenophobic immigration laws. My experiences at NCLR made clear to me that fighting for the human rights of queer and trans* people must involve coalition building with immigrant rights’ groups to pass comprehensive immigration reform. Thankfully, Mitt Romney’s defeat seems to have spurred even the Republican leadership to take seriously the need for dramatically changing the immigration law regime. Queer and trans* immigrants must be included in these reforms.

The most well-known example of immigration law that affects queer and trans* immigrants is the Defense of Marriage Act (DOMA), which only recognizes marriages (in the case for immigration purposes) between “one man and one woman.” As a result, cisgender same-gender couples cannot sponsor one another for marriage-based immigration. Domestic partnerships and civil unions are also not recognized. Perversely, the ban also excludes the spouses of queer refugees who have been resettled to the U.S. as a direct result of fleeing persecution based on sexual orientation. If a queer person marries their same-gender U.S. citizen partner and they have a temporary work or student visa that requires intent to return to their home country, then they run the risk of having their visa revoked. DOMA also impacts trans* people in different-gender marriages because federal law does not define the terms “man” or “woman.” As a result, legal sex for marriage-based immigration purposes is determined in ways complex and confusing enough that I’m publishing a 50+ page law review article on the subject.

Moreover, the general harshness of immigration laws harms queer and trans* people in heightened ways. For instance, while U.S. asylum law protects people fleeing sexual orientation– and/or gender identity-based persecution, immigrants must currently apply for asylum within one year of entering the country in order to be eligible. Many very low-income undocumented queer and trans* refugees, who often have limited education, English proficiency, and understanding of U.S. law, have no idea that they are eligible for asylum and often do not learn that until after the one year mark has passed. Many queer and trans* immigrants have past experiences of violence from authority figures in their home countries. Unfortunately, poor queer and trans* immigrants of color, especially trans women of color, frequently encounter violence and profiling from U.S. police as well. As a result of these experiences, many queer and trans* immigrants have justified fears of outing themselves to U.S. government authorities.

The one year window for applying for asylum may be overcome in some very limited circumstances (for example, if an asylum-seeker only recently came out, was diagnosed with HIV, or suffered from severe depression.) Additionally, if a person applies for asylum and is rejected (because their excuse for missing the one year deadline was not accepted or because the interviewer doesn’t believe that they seem queer enough or that the harm they’d risk if they were deported is severe enough), they will be automatically placed in deportation proceedings. Asylum seekers with otherwise strong cases can be rejected for minor criminal offenses, which disproportionately affects low-income queer and trans* undocumented people with arrest records for drugs or sex work attributable to over-policing, profiling, extreme employment discrimination, social marginalization, and untreated PTSD. Thus, coming forward to apply for asylum is often extremely risky even for those who rightly fear persecution if they return to their home countries.

Being deported once renders immigrants ineligible for future asylum, even if they experienced persecution upon return to their home countries. One of my clients is a trans woman who, when deported to Mexico, was stabbed in the street by a stranger yelling “fag” within two hours of her arrival. My client’s deportation, which almost killed her, disqualifies her from seeking asylum.

Strict criminal record restrictions disproportionately impact queer and trans* people of color in routine immigration procedures. Applying for citizenship or for a replacement green card can result in being placed in deportation proceedings if a person has an arrest history. Another client was a middle-aged trans woman adopted as a young child from overseas by American citizens and kicked out of the house by her adoptive parents after she came out as a teenager. Forced to support herself through sex work, because in the 1970s (not unlike today) few other options existed for homeless trans* youth of color. In doing so, she racked up a series of arrests. Until fairly recently, adopted children did not automatically gain citizenship, and she now fears being deported to a country she doesn’t remember if she dares to apply for citizenship or a replacement for her expired green card.

Queer and trans* people in U.S. immigration detention centers experience horrific rates of sexual assault in detention, including from guards. Trans women risk sexual, physical, and psychological abuse, whether housed with the general male population or placed in solitary confinement for twenty-three hours a day, sometimes for years, “for their own protection.” HIV-positive immigrants (many of whom are queer or trans*) are often not given retroviral medications. Trans* people are frequently denied hormones and gender-specific clothing items such as bras and binders. Immigration officials cruelly denied my client (the one who was stabbed after being deported) razors to shave her face during her detention, despite the fact that she had been presenting as female since she was a young child. Suffering from untreated PTSD and ongoing abuses, many trans* immigrants with strong asylum claims give up and accept deportation because they can no longer handle unbearable detention conditions.

Queer and trans* DREAMers who were brought to the U.S. as children are impacted by all of the above-mentioned factors. Marriage-based immigration as a means of gaining status is often not an option. Applying for asylum is usually unacceptably risky, since by definition DREAMers have missed the one year bar and almost always lack the personal experiences of past persecution in their birth countries that are often part of a strong asylum case since they arrived in the U.S. as young children. Additionally, even Obama’s Deferred Action for Childhood Arrivals policy has very strict criminal records requirements. Deferred action also has education requirements, and many low-income undocumented queer and trans* youth experience bullying and harassment in schools or the school-to-prison pipeline, leading them to leave school.

Current U.S. immigration laws are broken and unjust. Like in all other racialized systems of control, such as mass incarceration, the drug war, and surveillance of people receiving public benefits, queer and trans* people suffer and will continue to suffer disproportionately. The only way that we as queer and trans* activists can fight against homophobia and transphobia as it impacts the most vulnerable members of our community is through working in coalition with other social justice groups to fundamentally change and dismantle these unjust systems. Repealing DOMA is not enough. We need to fight for a comprehensive immigration reform that will: recognize relationships beyond marriage for immigration purposes; eliminate the one year bar on asylum, mandatory criminal record exclusions, automatic deportation proceedings for those denied asylum, and disqualification of previously deported people from asylum; grant legal status to the millions of undocumented people who have made their homes in the U.S.; and abolish the inhumane and unacceptable immigration detention system.

About the author: Olga is a third-year student at Berkeley Law. She has provided legal services to queer, trans*, and HIV+ immigrants at the National Center of Lesbian Rights, the Transgender Law Center, and the East Bay Community Law Center. Her work at NCLR was partially funded by the Human Rights Center of the Berkeley School of Law. Olga is also the longtime girlfriend of the lovely Ms. Annika.

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  1. This was illuminating and I would like to share this article to remind my peers that gay marriage is not the end all for issues affecting the queer and trans* communities. This IS a human rights issues not one of vanity and “seeking normalization” from a problematic system of inequality.

    I’m lucky to have citizenship but I have family members who may not be queer have problems within immigration system. It’s really really fucking expensive, time consuming and soul sucking.

  2. Be extremely skeptical of Comprehensive Immigration Reform efforts!!! It is likely that the CIR that comes up in the coming year will allow pathways to citizenship for some while still expanding border militarization and immigrant detention for many, many more. Advocate for the end of border militarization and immigrant detention, and the dismantling of border patrol!

  3. Well, my two cents, I feel this would be more effective if it selected certain issues. For example, I would be interested to hear more about your research into the legal sex question – I find Lovo-Lara very clear but I’m sure shortcomings abound. Personally, I’m not sold on some of the other arguments (e.g. the one year filing requirement for asylum because it is consistent with the intention of the program, criminals who already have exceptions 20 ways to Sunday, and I don’t see the court as the boogeyman – not everything can be resolved administratively). Which isn’t to say an argument couldn’t be made, just space here did not permit it.

    I totally understand that this is an overview but the issues are so diverse, numerous sections of law, three different departments of the government (and even more agencies within), and sweeping policy changes at the federal level that I hate for the reader to collapse this and join the often vacuous battle cry for “immigration reform”. I guess I’m saying fight the good fight but the more fleshed out your informed opinion becomes the more the skeptic will listen and the more the novice will learn.

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  5. A really great person who’s been writing about these issues for years is South African born (but now living in the Bay Area) attorney Melanie Nathan. She’s also been very involved with LGBTQ rights in Africa and the entire struggle over what’s been going on in Uganda… I highly recommend reading the immigration-related articles on her blog:

    I also want to point out the especially oppressive situation trans latinas are facing within so many INS detention centers. This is a shamefully under-reported story in the LGBTQ media.

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