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I. Belonging

Summary

Who belongs?

The United States is peopled by the displaced and exiled, and divided by belonging.  Who is inside and who outside; whom the government recognizes and whom it rejects, have been basic questions through its history.  The ramifications reach into the realms of intimacy. When two people fall in love and plan to live the rest of their lives together, they may depend on the state to acknowledge and safeguard their union: never more so than if they have different nationalities. United States policy is to help foreign spouses and fiancé(e)s immigrate and live with their U.S. partners. But not if that partner is of the same sex. 

Binational same-sex partnerships are lesbian and gay couples where one partner is a U.S. citizen or permanent resident, the other a foreign national.¹  In 2000, the U.S. Census, investigating household makeup, estimated 35,820 such couples lived together in the United States. This represented some 6% of all lesbian or gay couples counted in the country.  These couples dwell in every state, make their way at every income level, represent a mosaic of American diversity.  The foreign-national partners come from almost every nation in the world. 

Their relationships have no recognition in federal law, and no rights.

These figures only suggest the issue’s scope.  They do not count couples who hide the fact that they are partners, lest the one applying to stay face homophobia in the immigration or asylum process.  They do not count couples who avoid the census, because the foreign partner lives here illegally to maintain the relationship, or fears being forced to do so after a visa expires.  They do not count couples who do not share a home—or who live in different countries because U.S. immigration law, and marriage policy, will not permit them to share their lives together within its borders.  They do not count couples where the U.S. partner has chosen exile, so that they can lead common lives in another, friendlier country than this one. (At least nineteen countries have acknowledged lesbian and gay relationships in immigration law and policy, while the U.S. still refuses.  See Appendix B for more information.)

Undoubtedly the more than 70,000 members of such families whom the last census counted are only a part, perhaps a very small one, of the whole.

This report documents the crippling barriers such families face in pursuing a goal enshrined in America’s founding document—happiness.  Those barriers center around a simple fact. With only rare exceptions, a heterosexual couple where one partner is foreign, one a U.S. citizen, can claim the right to enter the U.S. with a few strokes of a pen.²   They need not even marry: they need only show to a U.S. consulate abroad that they intend to do so and have met at least once before in their lives.  (Waivers of the latter rule are possible.)

In practice, U.S. immigration is filled with obstacles for many who seek to enter.  Any binational family may encounter injustices and bureaucratic barriers on the road to reunification. A flawed and irrational system demands overhaul. But a lesbian or gay couple cannot even claim basic rights.  Their relationship—even if they have lived together for decades, even if their commitment is incontrovertible and public, even if they have married or formalized their partnership in a place where that is possible—is irrelevant for purposes of entering the United States. Instead, they face a long limbo of legal indifference, harassment, and fear. Couples told us stories of abuse by immigration officials, and even deportation.  They described the devastating impact not only on their partnerships but on their careers, homes, children, livelihoods, and lives.

An American man, faced with the expiration of his Venezuelan partner’s tourist visa, wrote us:

I am very proud to be an AMERICAN. …  We are trying to find other options to allow Jorge to stay in the country—we do not know what options we have but with our faith in God—we believe we will find the answers.  I respect the laws of the United States and will continue to do so if Jorge’s visa expires. …. We have no intention to break up or separate—this is not an option—it has never been an option for the heterosexual couples.  Jorge dreams about being an American citizen, celebrating the incredible freedom afforded to Americans, and to once again be proud of a country he strongly believes in.³

Some couples find such stubborn confidence impossible.  A woman in Iowa, living with her partner from New Zealand, wrote that immigration laws:

do not allow my partner to live a free life, she is in constant fear of being deported and removed from this country and her family.  We live a struggle every day as there is only one income.  Together we are raising a twelve-year old son. Nadia, my partner, is my son’s mother also, and losing her would destroy that little boy’s life, she is just as much a part of him as I am.  She keeps this family together and whole. I am also a veteran of the United States Navy and have done my time and service to my country. It breaks my heart that for all I’ve done with this country it will not see the person I love who has strength to hold me up when life is bad—she cannot remain even after the commitment we have put into each other and our son’s life.  I cannot imagine life without her.  How could anyone live without their heart.⁴

Many couples are separated, many families broken up.  A woman in North Carolina described how her Hungarian partner and the children they were raising together were forced to leave the country.

Even though the children went to school here and grew up here and this is Home!  It’s just not right.  No family should be forced to be apart no matter what the sex is.  It’s all for love.  No one should determine how to live your life like this, no one. This is how immigration laws have affected us.  We are separated, and without each other…  We just want to be together, that’s all.  No harm in that.⁵

Over and over couples spoke of the contradiction between what they thought were American values and the reality they know.  Liz, divided from her Jamaican partner Carly, said, “I have a right to pursue happiness and Carly makes me happy. We don’t hurt anyone. … That’s all.”⁶

Many U.S. citizens go into exile to preserve their families and stay with their life partners. One man, living an ocean away from his Portuguese partner, said:

The U.S. government does not want to acknowledge that homosexuals are entitled to be happy, just as any human beings… Now that I have finally found my soul mate, the U.S. government wants to tell me that I do not have the right to be with him.  If immigration laws don’t change in the near future, I will be leaving the United States, even if that means being unemployed and living in misery.  At least I’ll be with the one I love.⁷

A U.S. woman who has moved to Denmark to be with her partner of almost twenty years told us, “It was a lot of letting go. I had to give up my career; I had to give up my country.  But I gained a lot too.  I gained the recognition of our union here.  I would never go back on a decision that allowed us to have and to raise our two wonderful kids.”⁸

Family reunification is an express and central goal of U.S. immigration policy, and has been for more than fifty years.  Immigration law puts priority on allowing citizens and permanent residents to sponsor their spouses and relatives for entry into the U.S.⁹  A commission appointed by Congress to study immigration policies in 1981 concluded:

Reunification of families serves the national interest not only through the humaneness of the policy itself, but also through the promotion of the public order and well-being of the nation. Psychologically and socially, the reunion of family members … promotes the health and welfare of the United States.¹⁰

But, lesbian and gay people’s families do not count.  Their partners are excluded from the definition of “spouse.”

Such couples are trapped between two ferocious panics sweeping the U.S. One is over equality in civil marriage. Amid rancorous debate about whether to recognize lesbian and gay people’s partnerships at any level, some distort the demand for simple fairness into a claim for “special rights,” and portray the principle of non-discrimination as a bid for privilege.  Some opponents of “gay marriage” openly define lesbian, gay, bisexual, and transgender people themselves as second-class citizens.  One makes clear that homosexuals are not only unequal but “unqualified” to participate in society’s basic benefits:

Homosexual marriage will devalue your marriage.  A license to marry is a legal document by which government will treat same-sex marriage as if it were equal to the real thing.  A license speaks for the government and will tell society that government says the marriages are equal.  Any time a lesser thing is made equal to a greater, the greater is devalued. … Granting a marriage license to homosexuals because they engage in sex is as illogical as granting a medical license to a barber because he wears a white coat or a law license to a salesman because he carries a briefcase.  Real doctors, lawyers, and the public would suffer as a result of licensing the unqualified and granting them rights, benefits, and responsibilities.¹¹

The fear of what one writer called “ceremonialization of anal sodomy”¹² led in 1996 to the so-called Defense of Marriage Act.  Limited local recognition of same-sex partnerships already had no effect on immigration policy, which is a federal concern.  The Defense of Marriage Act, however, declared that for all purposes of the federal government, marriage would mean “only a legal union between one man and one woman as husband and wife.”  The exclusion of lesbian and gay couples from U.S. family-reunification policy was written unequivocally into law.

Binational couples, along with tens of thousands of other non-citizens, also face the rising panic over immigration in the U.S. That exclusionary impulse is nothing new.  A conservative who calls immigration “the most immediate and most serious challenge to America’s traditional identity”¹³ echoes, perhaps unwittingly, nativist rhetoric more than a century and a half old.  After the September 11, 2001 attacks, cultural difference was increasingly seen as criminal threat.  Foreign visitors and immigrants became “the single greatest threat to the lives of America’s 280 million people.”¹⁴  Polemicists dubbed the Mexican border “Terrorist Alley.” Politicians complained that taxpayers had to pay to bury undocumented immigrants who expired trekking across the desert (saying immigration “imposes incredible financial strains—sometimes in the least likely ways”)¹⁵ yet also objected to systems allowing those aliens to signal for help before dying of thirst (“Could there be a more blatant slap in the face of American taxpayers than to have them fund such disgraceful boondoggles?”)¹⁶

Lesbian, gay, bisexual, and transgender foreigners share the spreading stigma and, like other non-nationals, encounter locked doors—and cells.  In December 2005, the House of Representatives passed the “Border Protection, Antiterrorism & Illegal Immigration Control Act.”  The bill, and similar proposals, would criminalize undocumented immigrants and those who help them. “Unlawful presence,” now a civil immigration violation, would become a crime subject to state and local police pursuit. An undocumented immigrant would be barred from seeking asylum, and their detention would be mandatory. ¹⁷

An immigrant could fall victim to this provision one day after a visa expires. Student visa holders would be at risk if they dropped below required course loads. And anyone who knowingly tries to help a foreigner in this predicament could become a criminal.  Many binational lesbian and gay couples could be injured. A U.S. citizen whose same-sex partner became undocumented could be convicted of “smuggling” them—and imprisoned, and stripped of home and property.  

Recommendations

Freedom from discrimination is a human right.  The hardship, harassment, and pain that same-sex binational couples endure in confronting and trying to conform to U.S. law show the discriminatory consequences of denying a class of people the recognition their relationships need and deserve. 

Equally important, the losses and separations also reflect a broken immigration system: inconsistent standards, processes ridden with arbitrariness and delay, a ramshackle set of often conflicting rules which encourage discrimination and abuse.  Innumerable families negotiating the U.S.’s reunification system find enormous impediments to living together in this country.  The problems of lesbian and gay couples are only one aspect of the system’s failures.  As one gay Argentinean and his American partner told us, ruefully: “Bureaucracy doesn’t move at the pace of people’s lives.”¹⁸

Once again, though, while heterosexual families can elicit a measure of public and political sympathy, the animus against lesbian and gay families is embodied in law.  Even their claim to family status is foreclosed from the start.  The United States urgently needs to enact comprehensive immigration reform—ensuring adequate and fairavenues for immigrants to enter the United States both temporarily and permanently and offering reasonable roads to legal status for undocumented immigrants already living and working in the country. Ending the egregious discrimination that excludes lesbian and gay families from reunification policies must be part of that. 

Traditionally, the Supreme Court has accorded Congress wide scope to regulate entry to the U.S., holding it is part of the “plenary powers” given the legislature by the U.S. Constitution.  This power is not absolute, though, or completely immune from scrutiny for discrimination and injustice.  The Court has acknowledged cases “in which the alleged basis of discrimination is so outrageous” that denial of entry may be challenged—including denying people entry solely because of their race or religion.¹⁹  Moreover, it is important to stress that all immigrants on U.S. soil—including those here illegally—are guaranteed the same rights as citizens, with only a few exceptions, such as the right to vote. The U.S. Constitution grants to “the people” or “persons”—not just to citizens—the rights to due process and equal protection of the law, to be free from arbitrary detention or cruel and unusual punishment.

Yet U.S. citizens (and permanent residents) are equally victims along with their foreign-national partners.  Solely because of their sexual orientation or gender identity, they find their relationships unrecognized, their families endangered, their lives shadowed by separation and dislocation.  Often, their relationships are wrecked, or driven underground.

The philosopher Tzvetan Todorov (writing in an altogether different context) has tried to define “dignity,” vital among the panoply of values that make up human rights.  He finds it connected to the human ability to make meaningful decisions about one’s own life and to make these decisions known.  “The important thing is to act out the strength of one’s own will, to exert through one’s initiative some influence, however minimal, on one’s surroundings. … It is not enough simply to decide to acquire dignity: that decision must give rise to an act that is visible to others (even if they are not actually there to see it).  This can be one definition of dignity.”²⁰  Denying recognition to one of the most important choices a human being can make, forcing the relationship consequent on that decision into terrified invisibility—these assault human dignity in an essential way.

Human Rights Watch and Immigration Equality both strongly support full equality in civil marriage, allowing same-sex couples the same recognition under law that heterosexual couples enjoy. Together we regard discrimination in the legal recognition of relationships as a gross violation of human rights.²¹ 

However, repairing the inequity in the immigration system that tears same-sex binational families apart is an issue distinct from the debate over same-sex marriage.  Many other countries which have accorded immigration rights to such couples have done so separately from enacting civil partnerships or opening marriage status.  

Acknowledging this discrimination as a remediable failure of the immigration system is the aim of a bill now before Congress.  The Uniting American Families Act (UAFA) would add the category “permanent partner” to the classes of family members entitled to sponsor a foreign national for U.S. immigration.

The UAFA would not grant couples recognition or rights for any purposes other than immigration.  Nor is it likely to open the gates to waves of newcomers.  The figure of almost 40,000 binational lesbian and gay couples whom the census discovered represents a significant population suffering serious harm—but it hardly suggests that legal recognition would add more than minimally to the number of immigrants (between 700,000 and one million) whom the U.S. already admits yearly.²²  People claiming permanent partnership would have to prove the fact, and undergo the same rigorous investigations that authorities already impose on binational married couples—meaning the bill would not open new possibilities for “marriage fraud.” 

Rather, the bill would address an egregious inequality.  It would protect dedicated families and their children.  It would prevent the drain of talented people to other countries.  Its passage is urgent. (A full description of the UAFA is found in Appendix A.)

 Human Rights Watch and Immigration Equality call on the United States Congress to:

• Enact the Uniting American Families Act so that binational same-sex couples’ relationships receive the same recognition and treatment currently enjoyed by binational married couples within the current U.S. immigration policy providing for family unification.

• Repeal the Federal Defense of Marriage Act (DOMA) which mandates discriminatory treatment of lesbian and gay relationships by the U.S. federal government. Until the DOMA is repealed, eliminate discrimination against lesbian and gay couples by prohibiting DOMA application in the context of U.S. immigration law and administrative regulations.

• Fashion any reforms to U.S. immigration law to guarantee respect for all human and labor rights of non-citizens. Ensure that any immigration reforms do not have the effect of discriminating against persons on the basis of race, color, descent, religion, gender, health status, sexual orientation, gender identity, or national or ethnic origin.²³

• In accordance with International Guidelines on HIV/AIDS and Human Rights (UNHCHR/UNAIDS, 1998; para.105), stating that “there is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status,” amend the Immigration and Nationality Act Section 212(a)(1)(i) to declassify HIV as a “communicable disease of public health significance,” which renders HIV-positive citizens non-admissible without seeking a discretionary waiver. (See chapters II and VI for detailed information.)

Human Rights Watch and Immigration Equality call on the United States Department of Homeland Security, the Attorney General of the United States, and the U.S. Department of State to:

• End discrimination against same-sex couples throughout the immigration process, ensuring that the burden of proof in determining the validity of same-sex partnerships is comparable to that of heterosexual partnerships.

• As an overarching matter of priority, ensure that wherever family ties would be taken into consideration in the U.S. immigration process, relationships between same-sex partners count on an equal basis with heterosexual relationships. This non-discrimination standard should be applied inter alia whenever the Department of Homeland Security, the Attorney General of the United States, or the U.S. Department of State:

o determines eligibility for bond on post-order custody reviews;

o considers cancellation of removal applications, extreme hardship waivers, and similar applications and decisions;

o recognizes the status of a couple entering the United States on the I-94 customs declaration;

o makes consular decisions on visa eligibility based on family relationships.

Human Rights Watch and Immigration Equality call on the United States Department of Homeland Security to:

• Ensure that the burden of proof in determining the validity of same-sex partnerships is comparable to that of heterosexual partnerships.

• Allow non-immigrant visa holders to bring same-sex partners as dependents of the primary visa holder during the duration of the primary visa holder’s stay.

• Allow same-sex partnerships legally recognized in foreign or domestic jurisdictions to be legally valid for U.S. immigration purposes.

• Ensure that same-sex couples are able to enter the U.S. as couples on the I-94 customs declaration, rather than as single entrants.

• Implement training to counter discrimination based on sexual orientation or gender identity or expression in all areas of the immigration system.  This should be provided to employees of all ranks and be given at regular intervals, not merely at the start of employment.  External instructors and community organizations should be engaged for training.

• Ensure that all non-citizens facing removal from the United States have access to judicial review and appeal to a higher authority, as required by international human rights law.  In addition, ensure that detained individuals, including those detained pending deportation, have access to judicial review of the decision to detain.

• Amend the Detention Operations Manual—including the Disciplinary Procedures, Section IIIA(5)(b) and Detainee Classification System, Section IIID—to prohibit any discrimination against protections for the health and safety of vulnerable groups, including lesbian, gay, bisexual, and transgender people, and people living with HIV/AIDS.

• Ensure that the Detainee Grievance Procedures of the Detention Operations Manual are implemented in a manner that prohibits and prevents discrimination against vulnerable groups, including lesbian, gay, bisexual, and transgender people, and people living with HIV/AIDS.
• Implement a central, accessible, and up-to-date system of complaint for incidents of harassment and discrimination by immigration officials.  Complaint mechanisms must be multilingual.  Complaints should be promptly and impartially investigated.  Individuals who bring complaints must be protected from intimidation and repercussions.  Individuals who have brought claims of abuse should have the option of appealing their case.