GAY AND LESBIAN FAMILIES

Analysis

Immigration Laws Discriminate Against Gay and Lesbian Families

While U.S. immigration law generally grants residency to heterosexual non-residents if they are married to a U.S. citizen, it does not allow the same for gay and lesbian non-residents involved in a permanent partnership with an American citizen.  This discrimination under immigration law offers no practical way for non-resident gay and lesbian partners to obtain permanent residency; therefore, many American citizens are forced to choose between staying in their country or staying with their partner.

Binational Couples:

Although presently nineteen countries grant immigration benefits to non-citizen partners of same sex couples, these countries do not include the United States.  Even with some states granting same sex couples the right to marry, immigration laws still do not apply to these couples, for the federal government does not recognize these unions under the Defense of Marriage Act. 

Asylum:

In 1994 the Matter of Toboso-Alfonso case recognized discrimination based on sexual orientation as grounds for applying for asylum.  Although this process is long and difficult, there have been many successful asylum applications based on sexual orientation.  However, immigration officials grant asylum based on sexual orientation only if the country from which the applicant seeks asylum is hostile toward gays and lesbians.

Detention:

Since the harsh immigration laws of the 1990s, many non-citizens, including asylum seekers, have been taken into custody by Immigration and Customs Enforcement for even minor visa violations.  Of the approximately 200,000 individuals detained by ICE, many are often detained for months or years at a time in either county jails or facilities with jail-like conditions. LGBT and HIV-positive immigrants are particularly vulnerable in these detention centers as they are often the subjects of discrimination, harassment and outright abuse. Furthermore, HIV-positive detainees suffer additionally from the substandard health care of many of these facilities.

HIV Issues:

On June 29, 2009, the Department of Health and Human Services created a proposal that would exclude HIV from the list of “communicable diseases of public health significance” which has prohibited HIV-positive foreigners from applying for legal residency and even  traveling short-term to the United States under the Immigration and Nationality Act. Once these new regulations have been finalized, the HIV ban, which has lasted for over twenty years, will finally end. 

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