Belinda Ryan and Wendy Daw © 2006 Private
Wendy Daw, a U.S. citizen, is thirty-seven; Belinda Ryan, from Britain, is forty. We listened to them on a sunny afternoon in their modest home in Californias East Bay. Its time to speak out, Belinda kept saying. They have become activists for the unrecognized rights of couples like themselves. Wendy tells how their love, and trouble, started:
That first six months was pretty wonderful. I had just started at graduate school; Belinda had moved to this country; she was here in the Bay Area studying to be a helicopter pilot. And then she finished school. And that was when we started to realize the predicament: wow, this was serious.
She was allowed to find a job under the student visa, so she started looking for workbut its not that easy to find a job as a pilot. And we started to think, what will happen if she has to return to the U.K.? I had never lived with someone before. When we started living together, I felt this was a serious commitment. It crossed the line between so I want to date and so I want to spend the rest of my life with herand what if she has to leave the country in the next week?
Belinda got her job, just through persistence, with a jet and helicopter charter company, and a work visa with it. And everything was OK for a while. Then, barely a year later, Belinda remembers,
My boss said Merry Christmas, heres your bonus, were closing the company down. For us, this was a catastrophe: were going to have to look again at changing our whole life and leaving. But luckily I knew an aerial photographer. I told him: Ive got a partner here. I wasnt out to a lot of people, but I came out to him: my partner is a woman. He said hed been thinking about taking someone on. And with that I applied for a change in visa because it was a new employer.
Wendy says, This was the fourth wrinkle in visas. About a year ago we started to add up the amount we had spent on visas. We had spent $19,000 on legal feesthe down payment on a house.
So she got this job working in aerial photography. That was all good, exceptsuddenly 9/11 happens. The airspace here gets shut down for three months. She cant fly. He was saying to her, Im just going to have to shut the business.
To get away from it, we went to Britain for Christmas. And thencoming backwe went to go get on the airplane, this official is looking at passports, and he just suddenly pulled Belinda out of the line and told her she cant get on. And told me I had to get on the plane. We didnt understand, she had her visa, all her paperwork, she was totally legal.
It was a subcontractor who goes through passports. He actually called the U.S. embassy, talked to them, wouldnt let us talk to them. He said she couldnt get on the plane. And insisted I get on.
Of course we couldnt indicate we were partners. We know if its acknowledged anywhere that she has a partner in this country, that could keep her out Finally we left the airport. Belinda started calling. We got the automatic U.S. embassy helplinesthis went on for four or five days, no human there picking up the phone, routed to a call center up in Scotland with no idea what to tell you.
So I got on, tried every voice menu at the embassy, and after twenty-five selections I got a live person. I said, I am an American, I need help.
That woman helped us muddle through the whole mess. We had to do all kinds of stuff, get something notarizedthe embassy was in lockdown after 9/11, they wouldnt even let me in the door. So the notarized form and her passport had to go in by mail, and we spent days running around London, trying to get things and get them sent.
All it was, was that our lawyer had failed to tell us that even though Belinda had her work visa papers--everything legal--still, before you come back you have to send your passport and papers to the U.S. embassy in the country youre in so they can stamp it.
And no one at the airport would tell us, either, that this was the problem. For people who cant speak the language like Belinda can, or didnt have a partner: how would they find out what the problem was? We were there for an extra two weeks sorting this out. And when we get to the U.S. we cant go through the gate together: because we dont share citizenship, and cant afford to be seen as a couple.
And I went really quickly, and then had to wait and wait to see if she came through . Ill tell you, being on the other side, and waiting and waiting for her to come through, and seeing all the others come through, and knowing that if she were turned around and sent back, there would be no way for me to find outI had no legal right to get any information, and I knew it. None.
The incident was a crude reminder of how they lack the legal status a married couple takes for granted. Belinda says, Even though my paperwork was good, it took me longer than two years after that before I left again. You never feel secure.
Butthe skies opened up, and we carried on, but the [aerial photography] business had taken a bashing Last year, he says to me that he cant afford to keep me on full time anymore. So Ive got to make some arrangement. I thought, if he cant keep me on all the hours of my visa, Ive got to leave the country.
So I am now trying to get another job. But we are in limbo. I am in depression. Financiallyif I havent got a job by the end of next month, we have to plan our exit.97
It is time to look at the stories of real people affected by U.S. immigration law. These include U.S. citizens such as Mark Himes, living in Pennsylvania with his French partner, who was in the last year of his six-year work visa. The couple had adopted a three-year-old boy, John, and was in the last stages of adopting a three-month-old girl, Claire Marie. Yet now, as visa expiration loomed, they confronted a possible huge threat to their home and stability. They wrote us, We live year by year with no real plans for the future. We live in a dont-ask, dont-tell world.98
They include people such as Luyen, twenty-four, a Taiwanese citizen, and his U.S. partner Aaron, thirty-five. Aaron had resettled in Taipei, far from his birth family and friends, so the two could remain together. Asked about U.S. immigration policys effects on them, Luyen wrote ironically, Nothingbesides putting us where we dont want to be and derailing our lives.99
Lesbian and gay binational couples are forced to make painful choices. For many, consulates and immigration offices become symbols of separation. For others, they embody bureaucratic barriers, paperwork and precariousness, time spent and legal fees paid to buy a tenuous imitation of security valid only until a visa expires: happiness on a parking meter.
Among the dilemmas couples may be forced to endure are:
All possibilities entail stress, loss, and huge expense; none promises an easy future. All these couples know, moreover, that were they heterosexual partners, U.S. immigration could quickly recognize their relationship and their right to be together. Brian and his Austrian partner Bernd, living in Colorado, struggled to find a legal way to stay together in the United States. Brian wrote us,
Life is full of challenges, and its too bad that this has to be one also We live in a country full of contradictions. A country that brags about being the land of the free and yet we try to oppress so many. My partner and I are law-abiding people that simply want to live our lives together, which means we need the immigration benefit provided to married couples. Were not asking for the whole world to change. Were asking for something basic; were asking for the right to be able to love and live with the one person in the world that I want to spend the rest of my life with. Thats it.100
Martha McDevitt-Pugh, who left the United States in the end to be with her life partner, Lin, told us, You dont casually date someone across an ocean.101 Yet many binational same-sex couples have to. Perhaps the non-U.S. partner cannot stay legally in the U.S.or cannot even get a visa to enter it; perhaps the U.S. partner, for reasons of job or family, cannot move away. Couples hoping to build a life together are unable to create a common home. Plane tickets and phone calls become the lifelines on which a relationship survives.
Ferdinand, a Philippine citizen, met his U.S. partner Sandy over the Internet six years earlier. He was turned down by the consulate when Sandy first invited him to visit. It was a grueling experience having to undergo an application; it felt like a medieval Spanish Inquisition. In 2001, he managed to reach the United States as a tourist and they encountered face to face: And it was magic! They kept the relationship going on visitors visas, flying to see each other yearly. When Ferdinand wrote us, he was applying for a student visa after acceptance into a U.S. MBA program, but was still not sure this would come through. It is extremely difficult to sustain such an arrangement, since we both are not rich. Our resources are dwindling We are just two people who are very much in love and would like to continue that love permanently. However, we are torn asunder by rules and inhumane laws just because we are gay men. Our only crime was that we were not born of the same country.102
Couples face enormous financial burdens trying to sustain a long-distance relationshipand again and again they stress how the presents pressures keep them from investing in any future. Jane, who works for the postal service in Ohio, supports her Australian partner, Laurawho cannot hold down an ordinary job at home and at the same time travel to the U.S. so that they can be together. Jane, meanwhile, cannot move to Australia because her teenage child from a previous relationship lives near her. Laura, she says,
is only able to stay three months at a time. So every three months we go through the pain of her returning to Australia for another six weeks, or until whenever I can come up with the money for her to return. The emotional strain on us is only slightly overshadowed by the financial strain. Having to come up with $6,000 a year just for her traveling doesnt leave a lot of breathing room to pay our bills, and no room to plan for the future. If laws were inclusive to our situation, there would be a security that we are lacking now. She would be able to work. We could save for our future together. It would make all the difference.103
Harry is a teacher in Florida; Jai works as a waiter in Indonesia. Harry says, We have been in this relationship for six years and have been able to live together only two and a half years of that timeimmediately after they met, while Jai was in the U.S. in school. Even through the separation and loneliness we maintain our monogamous relationship It has made our life miserable. Now money that would have been spent on making a home together is being spent on travel to be able to see him and be with him.104
Struggling to stay together legally in the U.S., many foreign partners in same-sex relationships juggle visa optionstourist, student, or work. Their lives become an alphabet soup, with maintaining or moving to B, F, or H status an almost daily, draining obsession.
Lynnette, a special education teacher in California, tells a typical story. She fell in love with Mei-ling, from Taiwan, a printmaker and painter, who now works as an art instructor for the disabled. It is particularly difficult to adjust non-immigrant visas to immigrant status:
She has had a practical training visa, then an H1B visa (both non-immigrant visas) and is now filing for a change in status to get a green card. It took four lawyers and constant negotiation with her employer to get to this point. It has made our stay together stressful, unsettling (how can you settle down if you dont know where you can live or stay?) and expensive. It has been demoralizing to see how little our relationship means legally. We mean so much to each other but nothing to my government, even though we are contributing members of society.105
People using student or training visas to stay with their partner often find themselves forcibly infantilizedregressing to seek a redundant education. The costs of staying in school can be acute, since most student visas allow limited opportunity to work; the U.S. partner must frequently furnish tuition and support. Moreover, foreign students usually cannot get financial aid, and even at state institutions pay several times what in-state residents doan inequity remediable if their relationships were acknowledged to permit them residency.
Gillian and her partner Sariya, from Thailand, met while the latter was studying in the U.S.: We fell in love and have been together ever since. That was almost five years ago. Living on a student visa has been difficult, though, adding stress and uncertainty; making it necessary for Sariya to stay in school without a break at a cost to her stress level and our finances.106 Rebecca, twenty-seven, wrote us about her three-year relationship with her U.K. partner, Eileen. Each summer, Eileen comes to the U.S. on a training visa to serve in a summer camp, and Rebecca works there to be with her.
We have both essentially put our professional lives on hold to be together. It is difficult to explain to loved ones that I am going back to work at camp for one more yearwhen they (and I) know that I could get a full-time year-round job elsewhere that would allow me to start saving for retirement and a house. As it is now, we basically scrape to get by.107
To make ends meet, some are forced to violate the terms of their visas by working. The job is almost always poorly paid. Tony, a social worker from Brooklyn, met his Brazilian partner while Miguel was visiting New York. We were forced to maintain a long-distance relationship for three years until Miguel could get a student visa, Tony says:
He was a public defender in Brazil; when he got here with his visa, which precludes work, he was only able to take the occasional house-cleaning job. Oh, wait, did I say he was a lawyer in Brazil and had to work as a house cleaner in New York City? His choosing to come here on a student visa has plummeted him into a regressed role as student. Had he been my spouse he could have looked for work. If Hillary Clinton had to clean toilet bowls that might jolt her esteem too. As for me, it has been stressful at times bearing a large financial burden We constantly have to sit with what if.108
Those in the U.S. on work visas face different, equally difficult challenges. There is the constant fear that if the visa-holder loses the job, he or she will be forced to return homemeaning separation or dislocation for the couple.
As discussed above, finding an employer willing to sponsor a foreigner can be hard. The hirer must expend vastly more effort than taking on an U.S. citizen entails. The authorities have near-absolute leeway to reject work visa applications; requests can languish in endless delay. From Connecticut, Rich related how his Polish partner Greg, studying business, tried to get a work visa for a job in his familys U.S. firm. The then INS turned him down, Rich reports,
saying the business was too small to need a college-educated person in the management role they were offering. Since his family owns several other businesses, we appealed, explaining the business was larger than the application would lead one to believe In February of 2003 Gregs case suddenly got transferred to the INS in Washington. Greg spoke with the INS weeks ago and they informed him it can take a year from the date the case moved to Washington for his appeal to be answered. So, we are left in limbo. If his work visa is not approved, we would be separated and I would be powerless to help. I dont even want to think about it! My family would be devastated if I had to move out of the U.S. This entire situation is just horrid.109
Both partners careers may suffer in trying to stay together. When Maggie wrote us, she had left her North Carolina home to live in Australia with her lover Sarah. Both were computer programmers who met while Sarah was in the United States, and had struggled to remain there: We researched our options, but the most promising ways to allow her to stay would have required her to take up careers she had absolutely no interest in (nursing, for instance) or attempt to go to college in the U.S. and somehow pay for that. Thats no way to live your life, spending your days playing at something you have no interest in just to be with the one you love.110
Whether traveling to meet, or trying to keep the foreign partner legally in the U.S., couples fear the power of U.S. immigration officers to break up their lives by stopping them at the border. Crossing customs is a constant reminder of how fragile their relationships are, absent legal recognition.
Stephanie and Callie on a visit to Callies hometown in Oregon. © 2006 Private
Stephanie and Callie have been partners since 2003. Stephanie is a U.K. citizen, Callie from the U.S. For the first year, they exchanged visits, managing to spend months together at a timebut always knowing the days were limited. Stephanie says, The airport is just the worst thing . You always worry that youre looking too shifty when youre going through. You constantly worry youll be turned away, although youre doing nothing.111 Callie adds:
We were always careful if we were traveling together not to carry any documents that showed us as a couple together, in any way. No letters, cards, photos even We didnt want to get caughtno, not caught, because we werent doing anything illegal. We never considered breaking the law, because we both wanted to do it completely legally.112
Other couples, however intent on legality, have worse
stories to tell. Thomas, twenty-eight, lives in Chicago, an ocean and half a
continent away from his French partner of eight years, Francois. They met
while Thomas was studying in Paris as a college junior, were able to live
together in France when Thomas returned there for graduate school, but then had
to separate when he got a teaching job at home. That was two and a half years
ago, and we still have not found a way to bring Francois to the U.S. to live. They visit and vacation together; Thomas remembers how, returning to the U.S. from a joint trip to Canada,
I had to go through separately because were not considered a family, and I stood on the other side while one official was giving Francois a really hard time, asking probing questions that were not even relevant. Francois was not at liberty to say that my boyfriend did a really nice thing and bought me a present [this surprise trip to Canada] he was worried that this would incur even worse treatment. The immigration official demanded proof that he would return to France, but Francois didnt have his plane ticket on him, so the official wasnt even going to allow him back into the U.S. Technicallywe werent aware of thishe has to carry it with him always to prove his intent to leave. I was standing at a distance watching, feeling powerless. The immigration official saw me and said that I couldnt even stand thereand berated him. I had to move away till I wasnt visible; it revealed that we were a couple. He treated him differentlysmirking, laughing, treating him with disgust. After all this, he just said, Take your papers and leave, and he let him through. It was all about his own power.
Then I think, this man represents my country is this a country that I want to be associated with? Do I want to bring Francois to the U.S. if this is how he is going to be treated? This is where I want to live because its where my family is, but does this place represent the values that we have?113
Gitte Bossi-Andresen, a Danish citizen, was detained twice while entering the U.S. to visit her American partner of almost eighteen years, Kelly. They asked me why I was going to school, what I was doing there, if I could prove it, why I had left the states, why I was coming back I was bombarded with questions. Near tears, she says:
As a kid, I was always told, you are a diplomat for your country, youre a diplomat for your family, so when you go out, you behave in that way. So being detained, treated and singled as a criminal, it really means something to me. Maybe those incidents dont have to do with directly with me being gay, but they do indirectly: had I not been gay, I would have been married.114
The passport record of visits that keep a relationship going can turn incriminating at immigration control. Nathalie Fuz remembers how once JFK immigration held me for an hour, asking why I was going back and forth so much, grilling me about the multiple entries. I always get nervous when I enter the country. They are not pleasant. Her U.S. partner, Kelly, says, Its always nerve-wracking. When they cross the northern border for a trip, Theres this Peace Bridge between Canada and the U.S., and now ironically we feel this whole anxiety about crossing the Peace Bridge to come back. We cant eliminate the factor that our relationship isnt valid. You feel totally suspect.115
Some foreign partners know that, because of their sexuality, at home they would face violence, arrest, or death. Yet in claiming asylum, they do not always find a full or sympathetic hearing.
In one well-known case, Jorge Soto Vega, from Tuxpan, Mexico, had suffered violence in his community and even family since childhood. Police severely beat him, threatening to kill him unless he leftbecause, they said, they wanted to cleanse the town of gay people.
In 2002 in the U.S., Soto Vega claimed asylum. Immigration judge John Taylor found credible evidence that he was persecuted in Mexico because of his sexual orientationyet threw out his claim. Soto Vega, he said, looked straight and could hide his sexual orientation if he chose. Taylor wrote: It seems to me that if he returned to Mexico in some other community, that it would not be obvious that he would be homosexual unless he made that ... obvious himself.116
Both the confidence in stereotypes, and the belief that the closet can guarantee both sanity and safety, remain rife in the immigration system. Tom Smeraldo lives in New Jersey with his Venezuelan partner of four years, Emilio Ojeda. In 2002, Emilio first learned that it was possible to claim asylum from sexual-orientation-based persecution. At his hearing in late 2003, Tom says, The officer asked offensive questionsclearly she was not trained; for instance, when did you start acting gay? Emilio says,
Anyone investigating asylum for sexual orientation should know better than to ask the questions she did. The implication was, you are faking that you are gay. Immigration is looking for the stereotypes; for instance, a judge said to a friend of mine who was making a claim, You dont look like a lesbian. They assume that all immigrants are straight and all asylum-seekers on the basis of sexual orientation are frauds or criminals.
Tom Smeraldo and Emilio Ojeda in 2006 in their home. © 2006 Private
Emilio appealed a deportation order. On October 11, 2005, the case was postponed for six more months. Before that, Tom told us that I dont know how long we can live like this. If Emilio loses, well apply immediately for Canadian immigration. I would love to be treated equally somewhere, and I dont want to die living my life as a second class citizen.117
Giovanni was beginning to work for LGBT rights in his provincial city in Colombia when he met his partner Mark, a U.S. citizen, in 2001. Mark encouraged him to be more vocal. Giovanni says he and a few colleagues sent a letter to the guerilla group FARC, urging them to stop violence against homosexuals. Death threats followed; after a public meeting, a group of men attacked, clubbed, and whipped him, leaving him unconscious and with permanent injuries.
Mark helped him get a training visa to the U.S., and Giovanni relocated in 2003. They began preparing an asylum claima costly, time-consuming process. Giovanni was admitted to Bellevue Hospitals program for torture survivors; doctors documented his injuries from the beating. Yet at his interview, he stared at a stern face:
I knew that it was going to turn out badly. When I said the word homosexual his face grew hard. He never looked at me. I had read about Soto Vega and so I tried to look more gay. Id shaved my mustache and tried to fit the stereotypes. At the end I said, Im talking, sir, with my heart, Im telling you the truth. I said, Please help me, Im gay, my life is hell in that country.118
The written Notice of Intent to Deny refusing his claim, which Giovanni received weeks later, contained troubling phrases: the teacher told you that he knew you were a faggot; you were warned that [you] would be killed because [you] were a faggot.119 Both Giovanni and Mark were disturbed to find the word faggot used without quotation marks in an official U.S. government document.
Giovanni appealed. Eventually, a perhaps-embarrassed INS overturned the decision. However, he reflects resentfully on how abject the experience left him.
I got tortured, went to an embassy three times, I got a visa, I came to this country with my horrible English. I arrived and lived with my boyfriend. I applied for asylum, I waited for a long time with no response, I was denied and then approved. One woman from Colombia finds a man and marries him and in one year she is an American resident. Do you think that is fair?
Mark agrees: Im not asking for special rights. Im just asking to be equal.120
Undocumented immigrants are the main focus of current attempts to reformor radically restrictimmigration. But what does it actually mean to be undocumented? It describes a foreign national who is not in the U.S. on a valid visa. There are several ways of becoming undocumented.
First, a person may cross a U.S. border without an entry visa. Entrance without inspection happens mainly along the Canadian and Mexican borders. It has become the popular image of illegal immigrants, but this actually is much less common than other ways of becoming undocumented. More usually, one enters on a valid visa such as a student or work visa, and overstays its term. A student, for instance, would begin to accrue unlawful presence when she no longer attends a university but remains in the United States. 121
An undocumented immigrant who accumulates from 180 days to a year of unlawful presence is barred for three years from returning to the United States. An undocumented immigrant who accrues unlawful presence of more than a year is subject to a ten-year bar. Ways exist to overcome the bars to returning, including (in some cases) marrying a U.S. citizen, butagainthis is not available to lesbian and gay families.
Lesbians and gays arguably have fewer possibilities than most other immigrants to obtain legal presence here. Moreover, it may also be difficult for the U.S. partner to move abroad. More formidable obstacles than work and family ties may intervene. Foreign laws may not acknowledge their partnership. The U.S. partner may not have the education or background to be accepted permanently in a country where immigration law and policy favor skills over family ties.
Thus, many find themselves boxed into the difficult decision to stay together in the U.S. where the foreign partner is unlawful. No one wants this. Undocumented foreign partners told us they had actively tried to keep in regular status but could find no alternatives that would preserve the relationship. Fearing they might be forced into it, Stephanie and Callie told us that Overstaying your visa is not like killing someone; its just staying to be with the one you love. Yet youre treated as a criminal.122 For most, going undocumented means a life of privation, immobility, and fear.
The undocumented are trapped here, usually unable to leave the U.S. without facing legal bars to their return. Stephen told us of his European partner, who had been in the country since 1995: It has put a lot of stress on our relationship with fears that immigration will show up and deport him. There is also the stress that he has not seen his family in seven years, whom he is extremely close with. He (we) missed the marriage of his sister and the birth of two nephews from two of his brothers. There is also the fact that his parents are elderly and if one died he would not be able to leave the country for the funeral, for fear of not being allowed back in. We are a committed couple in every sense of the word. We recently celebrated eight years together.123
Chet, sixty-seven, and his Taiwanese partner Wei, fifty-nine, had been committed partners for two decades, during most of which Wei had lived in the U.S. undocumented: We have lived together and been devoted to each other for the last twenty years and have tried every way possible to get him permanent residence Every possibility has been a dead end because of immigration laws against gay partners. In that time, Wei had been able to visit Taiwan only twice to see his ailing mother; confusion about the order of his names in his passport meant that his overstay was not in the records, and allowed him to return. His mother passed away two years ago but he could not chance returning for the funeral for fear he would not get another visa. Now Chet fears that if he dies, Wei could be deported if he comes forward as an heir. We live day to day praying that the immigration laws will change and we can live together in peace without the constant fear that something will happen that will cause his deportation.124
Detention, and deportation after it, indeed menace the undocumented. Immigration detention has ballooned in the U.S. since September 11. (Whereas in 1995, 33,000 people were deported and some 5,500 were held by immigration authorities on an average day, in 2003, more than 77,000 were deported and 20,000 detained on an average day.125) Human Rights Watch has repeatedly drawn attention to unacceptable conditions in detention centersmany of which are local jails, or contracted centers run by private corrections companies. 126 Standards for immigration detention centers exist, but are inadequately and irregularly implemented.127 Immigration Equalitys work with lesbian, gay, bisexual, and transgender immigrants has shown patterns of harassment, discrimination, and abuse in detention. HIV-positive detainees also face discriminatory treatment, including denial of medications and placement in twenty-three-hour lockdown if they self-identifyclearly discouraging them from coming forward and seeking treatment.
The non-recognition of lesbian, gay, bisexual, or transgender peoples relationships can also weigh against foreign partners facing removal proceedings. Eligibility for bond (that is, release from immigration detention) for people who have received a removal order, and applications for cancellation of removal, can, in some cases, be influenced by whether the person has a family memberspouse, parent, or childwho is a U.S. citizen or permanent resident. This is particularly so if the deportation would cause the family member exceptional and extremely unusual hardship. DOMA codified that same-sex partners cannot qualify as family members for these purposes.128
To stem the fears that come with being undocumented, some couples contemplate a sham opposite-sex marriage for the foreign partner. The idea of entering into a fraudulent partnership only because the government will not recognize their real one infuriates and humiliates many. Amy, living with her British partner in San Francisco, feared they would have to separate when a student visa expired:
Now I think if we want to stay in California, an arranged marriage is the only option we can afford. If were found out, the non-U.S. citizen is kicked out of the U.S. forever and the U.S. husband can be put in jail or fined. But, as a gay person, I dont want to live a lie. The idea of having to be at my girlfriends wedding is just a day I dont know how I would get through.129
Wade Nichols and his Taiwanese partner Francis Shen, living together in what for Wade is exile in Taipei, had considered a fake marriage to stay together in the U.S. Francis has been harassed by U.S. immigration before. He says marrying is a long shot, and then Id have to go through immigration again, but that time it would be more difficult because Id be lying. It was hard enough when I wasnt lying. Its insane, he adds. The government would rather have people lie to them than be honest with them.130
On April 16, 2004, William Yates, Associate Director for Operations of the U.S. Citizenship and Immigration Services (USCIS, the former INS), issued a memo on Adjudication of Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transsexual Individuals. The memo stated:
CIS personnel shall not recognize the marriage, or intended marriage, between two individuals where one or both of the parties claims to be a transsexual, regardless of whether each individual has undergone sex reassignment surgery, or is in the process of doing so.
Yates stated rationale was to ensure consistency with the legislative intent reflected in the DOMA. However, in many U.S. states, as in many foreign countries, transgender people whose identity papers had been changed from their birth gender could still contract perfectly legal marriagesand had been able to do so for years. Since there is no federal family law, the U.S. has always looked to the law of the state or country where the marriage was entered into to determine its validity. The memo changed the rule, codifying that these marriages were suddenly void for immigration purposes.131
The memo claimed this had been an INS practice for some years. Yet one female-to-male (FTM) transgender man, Chris, wrote us that the INS did approve these marriages if valid where performed, still in existence, and not solely entered into for immigration purposes. It is one thing if you never had the right to sponsor your foreign partner for immigration purposes (same-sex couples); its another thing if you had the right, and all of a sudden a new memo comes and thus legally married couples are shattered to hear from the officers that their marriage is no longer acceptable for immigration purposes! His own story was one of rejection:
Me and my [foreign-born] wife have been partners for eighteen years. We got married in July 2001. When I applied for adjustment of status in the fall of 2001 based on our legal marriage, the interviewing officer and his supervisor told us they will retain our application and decide if they will forward it to their marriage fraud unit or to their continuing unitthe black hole. We were totally shocked since we didnt do anything fraudulent Since then were fighting. Our attorney requested more information. Finally, after almost a year, we got a note. But rather than giving us details about their mysterious claim, the note said that my application had been denied and that we have fifteen (!!) days to appeal their decision. We appealed it: that was the beginning of 2004. 132
A year later, Chris and his wife still had received no word.
I know more couples whose lives are shattered due to this new policy Except for Massachusetts there is no place in the U.S. that does allow same-sex marriage, while lots of places/states do allow transsexuals to legally get married. But would the government care, or apply logic?no. As you can see its not homosexuals or activist judges or the ACLU who are trying to redefine marriages. Its our own government who already redefined legal marriages where one spouse is a transsexual. The impact of such policy is horrendous.133
In fact, less than six months after the memo, on September 21, 2004, the Board of Immigration Appeals (BIA) reversed it in a case decision. Noting that several states had allowed transgender people to marry even before DOMA was passed, while the House Conference Report on DOMA had stated that no state has ever permitted homosexual couples to marry, it concluded those marriages were not among the ones the bill intended to invalidate.134
Yet prejudice and discrimination still confront transgender people in immigrationand elsewhere. Crucially, not all transgender people can legally change identity, or marry. Some states do not acknowledge change of identity; in 1999, a Texas court nullified the seven-year marriage of a transsexual woman to her husband, saying that a persons legal sex is fixed at birth.135 States that allow identity change have varyingor simply unclearrules on what medical or other procedures permit it. The result is a crazy-quilt of local definitions and revocable rights that leaves transgender peoples personhood in the U.S. federalized, fragmented, and patchwork.
Zachary, a restaurant manager, lives in New York with his French partner, Daniel, who works on an H1B visa in the fashion industry. Zachary says, I would follow my lover to the ends of the earth. If my country decides it does not want us or our hard work and skills then we will go to a place that does . If enough gay people moved away, well, then, the extremists can rejoice. However, we are just two people who are in love and I am not sure why there is so much fear surrounding this. The gay community is a vibrant community which contributes so much to the common good. Why would any sane government want to be rid of that?136
When U.S. citizens foreign partners are not permitted to live with them in their country, Americans are forced to uproot themselves and leave their families, their jobs, their communities and country. Often, they turn to one of the nineteen countries with laws that allow citizens to sponsor their same-sex partners for immigration purposes.
These couples absence is felt in the places they leave behind. Many must say goodbye to aging parents, forced to choose between their birth families and adult familieswhile other couples are able to stay loyal to both. Mothers and fathers must spend their final years alone or in nursing homes, even though their children want to care for them.
Partners in exile experience the ache of amputated lives. Martha McDevitt-Pugh wrote us from the Netherlands:
I left the U.S. by choice. I saw that I could live in a country where my relationship is 100% recognized and equal with a heterosexual marriage, and that staying in the U.S. would mean having a long-distance relationship with my soul mate. I chose to leave. The option of staying without my partner was not acceptable to either of us. The idea of returning to a country where I am a second-class citizen does not appeal. It is very hard on me to be away from my family (mother, sister, brothers, nieces and nephews) in the U.S Its very hard to know that the land of the free is not a place where my spouse and I can be free. My own country has turned its back on me and many other gay and lesbian citizens.137
Some foreign partners echo the language of loss. Ayla, from Turkey, who had spent years in the United States, moved to Canada in 2005 with her American partner, Connie, because there was no way to stay together legally in the U.S. When we got to Canada, I wanted to go back so badly, in a heartbeat, Ayla says. I wish the U.S. would allow us to be together in the way Canada does. That country taught me a lota lot of good stuff, even if a lot of bad stuff. Yeah, Im a Turkish citizen, but that was my country.138
Connie and Ayla in 2005 at Christmas. © 2006 Private
Exile can be wrenching not just on emotional lives, but in the practical details. Corey moved to Brazil and overstayed his visa to remain with his Brazilian partner Alber: We have spent literally hundreds of hours in the last year and a half researching all of our options and trying to learn as much as we can about the laws of the U.S. and ways to stay together [there]. There is no way that we can.
The financial burden alone of traveling back and forth every six months would be impossible. So I stayed [in Brazil]. Words cannot describe what we have gone through emotionally, mentally, and financially. When my visa first expired here there were many days of panic and despair. We did not know how to handle the stress and the burdens and fear of what could or could not happen in the future. On more personal levels, until we find a place where we can both live legally and together, our daily quality of life suffers immensely. There are many things that I simply cannot do in Brazil for fear of being deported. Things like: driving, working in my own profession, flying, going to school. Every extra dime we have goes into savings for our future legal fees and potential judicial battles; therefore, even our social lives are at a minimum. We just wish to move forward with our lives and do it together. Unfortunately, these basic freedoms are not allotted to us because we are gay men.139
Still, for others, liberation outweighs absence. Anji, thirty-nine, has settled in Spain with her British partner of six years, Hills, forty-two. They spent three years in an exhausting long-distance relationship after the latter was denied a student visa to the U.S. Anji says,
Anji and Hills with their goddaughter, Ellie. © 2006 Private
When I tell people Im in exile from my country, they laugh. But its the truth. My ticket back to the U.S. is to leave my relationship. Hills has done nothing wrong, yet she is treated as an undesirable by U.S. immigration. She wants to immigrate for a simple reason, to be with her family, me, yet these reasons dont even exist for our government.
For us personally to be in an environment that feels more progressive is inspiring. To have a country do the right thing about civil rights, to make a commitment that all people are equal, is amazing. Its a blanket policy all people have equal rights; its not selective. This picking and choosing in the United States leaves a bad taste in your mouth
You cant get around the [U.S.] immigration system. We try to let people know that we didnt mess this up; were not lazy or stupid; we tried to find an avenue to pursue, but there just isnt one.
This experience rocked my identity as a U.S. citizen to the core. Sometime I feel like a child saying its not fair. I feel frustrated and very ashamed that the biggest country in the western world lags so far behind on human rights on its own soil People ask me why Im here, and I say, because I cant live there. For the country that professes to be a peacekeeper for the world, the guardian of human rights, and the bastion of democracy, theyre failing a significant percentage of their citizenship.140
 Human Rights Watch/Immigration Equality interview with Wendy Daw and Belinda Ryan, Fremont, California, January 31, 2005.
 E-mail to Immigration Equality from Mark Himes, August 2003.
 E-mail to Immigration Equality from Luyen (name changed at his request), August 2003.
 E-mail to Immigration Equality from Brian (last name withheld at his request), August 2003.
 Human Rights Watch/Immigration Equality telephone interview with Martha McDevitt-Pugh, founder of Love Exiles, October 10, 2005.
 E-mail to Immigration Equality from Ferdinand (name changed at his request), August 2003.
 E-mail to Immigration Equality from Jane (name changed at her request), August 2003.
 E-mail to Immigration Equality from Harry (last name withheld at his request), August 2003.
 E-mail to Immigration Equality from Lynnette (name changed at her request), August 19, 2003.
 E-mail to Immigration Equality from Gillian and Sariya (last names withheld at their request), August 23, 2003.
 E-mail to Immigration Equality from Rebecca (last names withheld at her request), September 13, 2003.
 E-mail to Immigration Equality from Tony (name changed at his request), September 2, 2003.
 E-mail to Immigration Equality from Rich (last name withheld at his request), November 13, 2003.
 E-mail to Immigration Equality from Maggie (last name withheld at her request), September 4, 2003.
 Human Rights Watch/Immigration Equality telephone interview with Stephanie and Callie (names changed at their request), October 12, 2005.
 Human Rights Watch telephone interview with Thomas (names changed at his request), October 26, 2005.
 Human Rights Watch/Immigration Equality telephone interview with Gitte Bossi-Andresen and Kelly Bossi-Andresen, December 20, 2005.
 Human Rights Watch/Immigration Equality interview with Nathalie Fuz and Kelly McGowan, New York, October 14, 2005.
 Soto Vega v. Ashcroft, No. 04-70868. The case remains on appeal.
 Human Rights Watch/Immigration Equality telephone interview with Emilio Ojeda and Tom Smeraldo, October 6, 2005.
 Human Rights Watch/Immigration Equality interview with Giovanni and Mark (last names withheld at their request), New York, August 18, 2004.
 Notice of Intent to Deny, Newark Asylum Office, date and name withheld at the applicants request, copy on file with Human Rights Watch and Immigration Equality.
 Human Rights Watch/Immigration Equality interview with Giovanni and Mark (last names withheld at their request), August 18, 2004.
 The Immigration and Nationality Act defines unlawful presence as follows: An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General (Secretary of Homeland Security) or is present in the United States without being admitted or paroled.
 Human Rights Watch/Immigration Equality telephone interview with Stephanie and Callie (names changed at their request), October 12, 2005.
 E-mail to Immigration Equality from Stephen (names changed at his request), undated, 2003.
 E-mail to Immigration Equality from Chet (names changed at his request), September 1, 2003.
 Bryan Lonegan et.al, Immigration Detention and Removal: A Guide for Detainees and Their Families, Immigration Law Unit of the Legal Aid Society, October 2004, p. 1. A documented immigrant who commits two or more crimes of moral turpitude while in the U.S. can also be detained and subjected to removal proceedings. This can include arrest and conviction for indecency or soliciting by police entrapment in cruising areas, among other morals offenses.
 See, for instance, Letter to INS Commissioner Doris Meissner, Human Rights Watch, October 30, 2004, at http://hrw.org/english/docs/2000/10/30/usdom649.htm, Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service, A Human Rights Watch Report, vol. 10, no. 4 (G), December 1998, and Locked Away: Immigration Detainees in Jails in the United States, A Human Rights Watch Report, vol. 10, no. 1 (G), September 1998.
 See U.S. Immigration and Customs Enforcements Detention Operations Manual, online at http://www.ice.gov/graphics/dro/opsmanual/index.htm (retrieved January 9, 2006).
 Many heterosexual families face separation under these provisions as well, both because certain grounds for removal prohibit considering family ties, and because the standard for exceptional and extremely unusual hardship has been set increasingly high by recent Board of Immigration Appeals decisions.
 Human Rights Watch/Immigration Equality telephone interview with Amy (name changed at her request), October 25, 2005.
 Human Rights Watch/Immigration Equality telephone interview with Wayne Nichols and Francis Shen, November 2, 2005.
 U.S. Citizenship and Immigration Services, Adjudication of Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transsexual Individuals, Interoffice Memorandum, April 16, 2004, on file with Human Rights Watch..
 Email to Human Rights Watch from Chris (last name withheld at his request), January 21, 2005.
 Email to Human Rights Watch from Chris (last name withheld at his request), January 28, 2005.
 Matter of Esperanza Martinez Widener, Board of Immigration Appeals, September 21, 2004. While theoretically binding across the system, anecdotal information received by Immigration Equality suggests that the decision is still not widely known among immigration officers. In May 2005, furthermore, the Board of Immigration Appeals issued a precedential decision that did recognize a marriage for immigration purposes where one of the spouses was transgender. The Board found that the Immigration Service should have looked to the law of the state, North Carolina, where the marriage was entered into, and since the marriage was considered legally valid there, it was valid for immigration purposes. Matter of Lovo-Lara , Board of Immigration Appeals, 2005.
 Amending Birth Certificates to Reflect Your Correct Sex, Lambda Legal Defense and Education Fund, November 12, 2002, at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1162 (retrieved January 3, 2006).
 E-mail to Immigration Equality from Zachary (names changed at his request), undated, 2003.
 Email from Martha McDevitt-Pugh to Immigration Equality, September 23, 2003.
 Human Rights Watch telephone interview with Ayla and Connie (last names withheld at their request), October 26, 2005.
 E-mail to Immigration Equality from Corey McDaniel, undated, 2003. Brazil introduced opportunities for immigration recognition of same-sex couples in December 2003 (see Appendix B).
 Human Rights Watch/Immigration Equality telephone interview with Anji (last names withheld at their request), , October 6, 2005.