Abstract

Excerpted From: Bijal Shah, LGBT Identity in Immigration, 45 Columbia Human Rights Law Review 100 (Fall, 2013) (379 Footnotes) (Full Document)

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.

It wasn't a decision that any U.S. citizen should have to make. I left [my] home ... I left a promising political career.

It's very difficult as an American to ... know that [in the year 2013,] the country just pushed us out for being in love and being gay.

It has been over 20 years since Fidel Armando Toboso Alfonso, a gay man from Cuba, was granted withholding of deportation in the United States based on his sexual orientation. [This] decision paved the way for hundreds of lesbian, gay, bisexual, and transgender individuals ... to obtain refugee and asylum status in the United States.

In United States v. Windsor, the Supreme Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Meanwhile, the Senate approved “the most significant overhaul of the nation's immigration laws in a generation,” in part by removing all legislative provisions protecting lesbian, gay, bisexual, and transgender (LGBT) binational couples. In other words, though the judiciary has invalidated the federal ban on same-sex marriage, Congress continues to operate as if same-sex marriage is so controversial that incorporating LGBT interests into comprehensive immigration reform would have “kill[ed] the bill.”

Further, the executive branch--having determined that DOMA was unconstitutional some time ago--continued to enforce it nonetheless until the Windsor decision, claiming that it was bound to do so. And yet, in Windsor, the Supreme Court highlighted that the executive branch had discretion to decide whether to enforce DOMA. Further, the Court indicated that the executive branch's choice to enforce DOMA provided the basis for the Court's jurisdiction in Windsor. In making this point, the Court also emphasizes the extent of executive discretion in the realm of immigration, which had previously been recognized and established by the Court as necessary because “[t]he dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities.”

Why does Congress continue to view matters of same-sex marriage in immigration as taboo in popular society? What similar societal factors influenced the executive branch's decision to forgo its stated, principled determination that DOMA is unconstitutional and continue to enforce DOMA nonetheless, particularly in the immigration context? How did the executive branch reconcile this with its pro-LGBT rhetoric abroad? And how will these socio-political dynamics continue to affect LGBT immigration to the United States?

Immigration law in general is both influenced by and sheds light on socio-political dynamics. After all, “[i]mmigration is no[t only] an issue of political economy--it's a cultural one”; indeed, “[i]mmigration law plays a role in national self-definition [and] pervasively regulates the boundaries of the national political community.” For instance, the identities of certain groups of noncitizens--examples include women, racial minorities, or children--not only impact their access to immigration benefits, but also both shape and reveal the position of those groups in general within the United States.

In this Article, I argue that there is an unexpected asymmetry in the impact of LGBT identity on immigration that exposes problematic inconsistencies in the U.S. immigration system. This asymmetry highlights the influence of American public norms on executive implementation of immigration principles. I suggest that examining this imbalance is key to comprehending the influence that America's national self-definition has had on the development of LGBT immigration. This, in turn, may shed light on the government's overarching approach to LGBT immigration over time and help improve both immigration and human rights policy.

I highlight this interplay with regards to two avenues to U.S. citizenship: asylum and partner-based immigration. In particular, I assert that U.S. immigration adjudicators have long considered the LGBT status of asylees more favorably than that of individuals wishing to gain citizenship via close ties or marriage to an American partner. In the asylum context, I note, LGBT identity is important, valued, and has long been recognized as specifically qualifying a noncitizen for benefits, despite the fact that many other vulnerable identities have been explicitly rejected by the U.S. government for asylum-based benefits. To the contrary, in family immigration law, LGBT identity was a complete barrier to obtaining partner-based immigration benefits. Indeed, I argue that this was the case prior to and independent of the passage of DOMA, which thus compelled the executive branch to constrain its discretionary immigration power more than was necessary after the passage of DOMA. Further, I propose, LGBT identity will continue to be a partial obstacle to immigration rights despite the judicial invalidation of Section 3 of DOMA.

In Part II of this Article, I provide historical information to substantiate that partner-based immigration for LGBT noncitizens failed for decades, while LGBT asylees' claims to immigration benefits and subsequent citizenship were dramatically successful at the same time. Then, I argue that this enduring disparity in LGBT access to citizenship contradicted cornerstone U.S. immigration principles. I also posit that there is no longstanding value for the safety of the LGBT community that might explain the favorable treatment of LGBT asylees (as compared to LGBT noncitizen partners). In fact, asylum protection for LGBT people existed several years prior to similar protections for the LGBT community in the domestic context. During that time, noncitizens granted asylum due to harm or state-based criminalization on the basis of their LGBT identities might have been subject to the same treatment in their country of refuge, the United States, without much recourse.

In Part III, I suggest that the disparate treatment of LGBT asylees and LGBT noncitizen partners of Americans has been based primarily on two factors. The first is the longstanding legal reduction of asylees' LGBT identities to a tolerable, one-dimensional “status” that is divorced from “deviant” conduct that is more problematic to American mores than LGBT status alone. The second is the continued national and subsequent legal censure of this LGBT identity-related conduct, which includes same-sex relationships, increases in LGBT-headed families, and the spread of LGBT communities across state lines. Further, while DOMA embodied this censure, it has not been eradicated by DOMA's nullification. Because of continued discrimination against LGBT people under the marriage laws of many states, a number of LGBT individuals may remain unable to avail their partners of partner immigration benefits despite the partial invalidation of DOMA.

In Part IV, I highlight how immigration policy's aforementioned treatment of LGBT couples has cast a shadow on the U.S. government's international human rights record. In doing so, I reveal a complex form of American exceptionalism spanning many years and originating in the U.S. executive branch. I note that the well-established practice of providing benefits to LGBT asylees may have helped to position the United States as an international human rights leader even as the United States simultaneously excluded LGBT noncitizen partners. I also contend that, more recently, the executive branch publically espoused a holistic LGBT human rights mandate that it could not fulfill because of its continued preservation of an immigration system incorporating the popular problematization of LGBT relationships and families. I suggest that this dissonance existed because the executive branch, despite its broad discretion in the field of immigration and potentially progressive aspirations, remained beholden to a relatively conservative domestic political culture.

Further, I cut away at a common conception of DOMA by maintaining that this statute was neither a complete obstacle nor is the invalidation of Section 3 a panacea to LGBT binational couples seeking immigration rights. Overall, I substantiate this argument by illustrating the exceptional reliance of immigration law on state-specific marriage determinations. I also suggest that because of the significant discretion the executive branch has in the immigration context, the use of agency mechanisms--such as executive order, systematic prosecutorial discretion, and even consistent internal executive policy--was an unexamined approach that could have been implemented prior to the fall of DOMA without judicial or congressional action. Indeed, these legal and policy strategies might have mitigated the inconsistencies between the United States' expression of LGBT human rights principles and application of those principles in the immigration context some time ago.

Finally, I assert that even though the abolishment of Section 3 of DOMA will bring stated U.S. human rights principles more in line with U.S. immigration policies, it is not enough. The government must implement additional measures to ensure equal access to immigration benefits for LGBT binational couples. Thus, I provide a forward-looking analysis of both the changes to immigration brought by the invalidation of DOMA and the ways in which Windsor--which, after all, is not an immigration case--leaves uncertain the future of LGBT access to immigration.

[. . .]

LGBT identity has allowed asylum seekers to receive broad access to citizenship and other benefits via the U.S. immigration system for decades. Yet, this very same identity obscured access to partner-based immigration benefits during the same time period. The divergent effects of LGBT identity on the two major paths to U.S. immigration benefits have been based on two factors. The first is the legal reduction of asylees' LGBT identities to a tolerable, one-dimensional “status,” fully separated from problematic or “deviant” LGBT conduct. The second is the continued national censure of this LGBT conduct, which includes the establishment of romantic same-sex partnerships, formation of families, and creation of visible communities. Indeed, Windsor is the only in a line of Supreme Court decisions that protects LGBT rights not only on the basis of an immutable, one-dimensional “status” formulation of LGBT identity, but also on the basis of LGBT identity as defined by conduct--that is, by the fundamental, intimate relationships comprising the lives of many LGBT people.

The preferential treatment of status-defined LGBT identity within asylum law, as compared to conduct-defined LGBT identity in family immigration law, has led domestic immigration policy to contradict both basic U.S. immigration principles and the LGBT-specific international human rights ideologies to which the executive branch has laid claim since the early 1990s. As a result of this dynamic, the United States has operated under a form of American exceptionalism that allowed it to present itself as a moral authority abroad while simultaneously preserving anti-LGBT bias at home.

As the Court notes in Windsor, the executive branch's discretion not to enforce DOMA was matched only by the existing level of discretion in the immigration context; both dissents argue further that executive discretion in the immigration context far exceeds the majority's characterization. Therefore, prior to Windsor, the executive branch could have implemented discretionary policies that reduced the negative impact of LGBT identity on access to partner-based immigration benefits. These policies would also have crystallized a truer commitment to human rights principles and helped reduce the incomplete application of those principles domestically. While Windsor will allow many binational same-sex couples to obtain immigration benefits, inconsistent access to state marriage rights and possible variations on the federal recognition of same-sex couples for immigration purposes will continue to limit partner-based immigration for LGBT people. Further, state and national borders will only become fully flexible to the growth and movement of LGBT communities when the polity and representative executive branch activity reflect similarly inclusive values. Given the continued, expansive discretion accorded the executive branch in the immigration system, in combination with the recent partial invalidation of DOMA, there is now ample opportunity for the U.S. executive branch to reconcile its domestic treatment of LGBT immigrants with human rights commitments it has expressed to the international LGBT community.

Acting Assistant Professor, New York University School of Law; former Associate General Counsel at the Department of Justice, Executive Office for Immigration Review. J.D., Yale Law School, 2007; M.P.A., Harvard University Kennedy School of Government, 2007.