Sexuality, Sexual Identity and Immigration

Immigration reform legislation passed the Senate. But Right-wing culture warriors exacted a cost: the exclusion of family rights for same-sex couples, much to the anger of national and local Lesbian/Gay/Bisexual/Transgender/Intersex/Questioning[1] (LGBTIQ) rights groups. Now, following the Supreme Court's striking down the Defense of Marriage ACT (DOMA), that exclusion appears to be less problematic.

strobel_image.jpg   Peg Strobel

Those affected by this exclusion included Kelly Costello and Fabiola Morales, who married in Washington, DC, in the summer of 2011and whose dilemma was highlighted in the Washington Post. Costello, who teaches elementary school, previously would not have been able to sponsor her legal spouse Morales, who works as a registered nurse, once Morales' student visa expires. As a result, Morales would have faced deportation to her native Peru.

The Williams Institute at UCLA School of Law estimates that there are 900,000 immigrants who identify as LGBT. Of these, about 267,000 are undocumented adults, while 637,000 are legal adult immigrants. Moreover, in the U.S. there are "an estimated 32,300 same-sex binational couples in which one spouse is an American and the other a non-citizen. . . . [And] more than half have children."[2] Under the Defense of Marriage Act (DOMA), the federal government could not recognize marriages of same-sex couples. Thus a U.S. citizen could not sponsor a same-sex noncitizen spouse under a family visa. Now, according to the Williams Institute, "The Windsor DOMA ruling has opened the door for a citizen to obtain permanent residence for a non-citizen, same-sex spouse, and expedited citizenship for a resident, same-sex spouse."[3]

Detention during deportation proceedings

Visa access is not the only issue, however. Chicago's National Immigrant Justice Center (NIJC) provides pro bono litigation services for immigrants, and it hosts an LGBT Immigrant Rights Initiative. As part of that work, in April 2011 NIJC filed with the Department of Homeland Security (DHS) a complaint of civil rights violations on behalf of 13 LGBT immigrants, "including sexual assault, denial of medical and mental health treatment, arbitrary long-term solitary confinement, and frequent harassment by officers and facility personnel."[4]

For example, in 2012, an Advocate article reported the case of an undocumented transgender woman being held for a deportation hearing after being arrested for failing to pay cab fare. She was held for 8 months in solitary confinement in a unit reserved for male sex offenders -- for her own safety, she was told.

According to the National Center for Transgender Equality, the Prison Rape Elimination Act of 2003 (PREA) does not apply to many DHS institutions that house people while deportation is being decided.[5] Protection from sexual violence during detention is thus a serious matter for all immigrants, although LGBT individuals face unique threats.


Although rights of same-sex couples were removed from the immigration reform bill in order to attract conservative supporters, some areas of U.S. law contain protection for lesbians, gays and transsexuals. For example, under some circumstances, gay, lesbian or transgender status may qualify as grounds for asylum in the U.S. An individual must "demonstrate that [they] suffered past persecution (harm directly from the government or from others that the government was unable or unwilling to control) or that [they] have a well-founded fear of future persecution."[6] In addition, one may claim asylum on the grounds of being at risk for persecution based on other people assuming one is gay or lesbian, regardless of one’s actual sexual orientation.

The experience of Romulo Castro, described by the New York Times, illuminates both the travails of LGBT asylum seekers and the possibilities for success. Castro, a drag queen living illegally in New York City, came to the U.S. in 2000 to escape sexual abuse in his native Brazil.  "I was being persecuted for being fruity, a boy-girl, a fatso, a faggot -- I felt like a monster," he reports. Castro initially did not apply for asylum, advised by advocates that his chance was slim because Brazil has a reputation for tolerance around sexuality identity. But in 2009, armed with letters from family members telling of their shame and from his psychiatrist, as well as articles documenting intolerance in Brazil, he was granted asylum.

The last several years have witnessed growing collaboration between LGBT communities and immigrant rights groups. For example, the National Network of Immigrant and Refugee Rights started its LGBTIQ Outreach and Leadership Development Project in 2009. Its goals include developing LGBTIQ leadership within the immigrant rights movement and promoting discussion and understand of these communities' issues within communities of color.

Peg Strobel is a member of Chicago DSA and co-chairs the Feminist Commission.

[1] Immigration Equality provides useful definitions, including: "Transgender is an umbrella term for people whose gender identity and/or gender expression differs from the sex they were assigned at birth or the stereotypes associated with that sex. The term may include transsexuals and others who do not conform to gender stereotypes." See also





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