US Visa Discrimination against Gays and Lesbians: A Long Road Finally Nearing the U.S. Supreme Court

by Bill Hutchinson

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17 November 2010

Shirley Tan and Jay Mercado are among 36,000 bi-national LGBT couples living with uncertain immigration status in the U.S., as estimated by The Williams Institute at the University of California-Los Angeles.¹²

Nearly one-third of those 36,000 couples are raising young children. 

“Because of our discriminatory immigration laws, families are faced with the very real choice between separating children from one of their parents or leaving the only country those children have ever known as their home,” said Steve Rails of the Immigration Equality Action Fund, the oldest and most influential organization of its kind, in an e-mail interview.

Lacking the immigration protections granted to male-female partnerships, some gay couples try to stay together by seeking  legal asylum for the foreign-national partner.

Authorized by Attorney General Janet Reno in 1994, Federal Order 1895-94 states that "an individual who has been identified as homosexual and persecuted by his or her government for that reason alone may be eligible for relief under the refugee laws on the basis of persecution because of membership in a social group."¹³

“Every year the number of (these) cases grows,” said Shannon Minter, legal director of the National Center for Lesbian Rights, noting that 2010 has been “particularly intense.”¹⁴
 
Gay or straight, anyone petitioning for asylum in the U.S. faces tough odds. Every year, some 46,000 foreign nationals seek asylum in the U.S. More than one-third of those appeals are rejected.¹⁵

There is no way to know how many of those granted asylum have been gay. U.S. immigration –- officially, the Bureau of Citizenship and Immigration Service of the Department of Homeland Security -- does not collect information based on sexual preference.

According to some estimates, however, the number of gay applicants who have successfully sought asylum in the U.S. in the last 20 years is probably fewer than 1,000.¹⁶

Proving discrimination on the basis of sexual preference is notoriously difficult in the United States.
Explained Rachel B. Tiven, executive director of Immigration Equality, "You must be able to convince the immigration judge you are who you say you are."¹⁷

"Sexual-preference asylum is a big issue because there is no way of verifying these claims," according to Dan Stein, president of the Federation for American Immigration Reform.¹⁸

In addition to proving their sexuality, asylum candidates must also demonstrate that conditions in his or her own country are extreme enough to warrant a fear of physical danger.

Even in countries where violence against gay men and women has been widely reported, however, immigration officials do not always acknowledge a threat.

“There is lots of documentation of violence [in Jamaica] toward the lesbian, gay, bisexual, and trans-gendered community," said Caitlin Barry, staff attorney at Nationalities Service Center in Philadelphia.¹⁹

“There’s also a lot of documentation of the government's inability or desire to protect these individuals," she said.
Shirley Tan’s original 1995 appeal for asylum included evidence that her life would be in danger in the Philippines from the man who had murdered her parents. She was rejected.²⁰

Seeking Haven Outside the U.S.
Federal immigration agents detain more than 200,000 men, women and children every year.²¹

Some are discovered when they travel or apply to college or for a job, at routine traffic stops, or during immigration sweeps of workplaces.
Sometimes, the end comes with a knock at the door, as it did for Shirley Tan and Jay Mercado, who had just finished dinner with their children when agents arrived at their home.

Involuntary deportation means a period of exclusion from the U.S. for a foreign national caught with improper documents. Sometimes, the individual may be denied re-entrance permanently.

Rather than endure the constant pressure of uncertainty, many LGBT individuals return to their home countries voluntarily.

“Those who are forced to return to their home country often face being forced to return to the closet as well,” said Steve Rails of Immigration Equality.

Other gay couples leave the U.S. together for one of at least 25 nations that grant immigration benefits to same-sex couples, including Australia, Great Britain and the 15 European members of the Schengen Visa pact.²²

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22. http://en.wikipedia.org/wiki/Immigration_equality#Worldwide