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Immigration PolicY

Immigration Practice

1990: Toboso-Alfonso Case

U

U.S. Immigration Policy and Practices' Effects on LGBTQ+ Migrants

Created by Kaitlin Bates

1996: Defense of Marriage Act (DOMA)

1980

2000: Hernandez-Montiel Case

1982: Adams v. Howerton Case

1993: Marcelo Tenorio Case

2013: U.S. v. Windsor

2000

2010

2020

1990

1996: INS Memorandum

1993: Same-sex Spouse Visas

Click the + to learn how these affect LGBTQ+ migrants

Key Sources:

The main route people take to immigrate to the U.S. is through spousal sponsorships. That's when a U.S. citizen who is married to a non-citizen sponsors (i.e. applies on behalf of) their spouse for citizenship or legal permanent resident (LPR) status. The other common routes are seeking refugee or asylee status. These parameters have been heavily regulated throughout history with little access given to LGBTQ+ migrants until very recently. Understand that these regulations are driven by homophobic, transphobic, xenophobic, classist, and racist ideologies that aim to maintain the stratification of minority groups.

Some LGBTQ+ Migrant Statisics

Some LGBTQ+ Migrant Experiences

2015: Obergefell, et al. v. Hodges

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The Immigration and Naturalization Service (INS) issued a memorandum in 1996 that allowed one's positive HIV status to be considered grounds for aslyum to the U.S.

1996: INS Memorandum

While this reaches beyond LGBTQ+ identities, the allowance of a positive HIV status to be grounds for asylum undoubtedly opened doors for LGTBQ+ migrants. Transgender people and men who have sex with other men are disproportionately affected by HIV.

Marcelo Tenorio was a gay Brazilian man who sough asylum in 1993. He was the first person to ever be granted asylum directly on based on his sexual orientation. "As part of the Tenorio case, the immigration judge deemed homosexuality to be an immutable characteristic that the applicant cannot reasonably be expected to change" (Carillo 446). However, this decision would not precendent until about a year later in 1994.

1993: Marcelo Tenorio Case

The judge was able to justify Tenorio's asylum status by recognizing "homosexuals as members of a 'particular social group' that is targeted for persecution, which is a requirement of asylum law" (Carrillo 446).

U.S. citizen Adams legally married his Australian husband, Sullivan, in Colorado. In 1982, Adams peitioned the Immigration and Naturalization Serice (INS) to have Sullivan legally recognized as an immediate relative to be elible for immigration sponsorship. However, the INS argued on zero basis that their marriage wasn't legally binding, and therefore Sullivan wasn't eligible for spousal sponsorship. The court ultimately ruled in favor of the INS.

1982: Adams v. Howerton Case

This was the first major account of fighting for the federal recognition of a legal same-sex marriage in the U.S. for the purposes of spousal sponsorship for immigration. This decision would not be repealed until the 2013 case of U.S. v. Windsor.

The Defense of Marriage Act was passed in 1996 by President Clinton. DOMA federally defines marriage as stricly between a man and a woman. This of course prevented those in binational same-sex relationships from sponsoring their spouses to immigrate, even if their marriage was legally recognized in the place of celebration.

1996: Defense of Marriage Act (DOMA)

DOMA served as a blatantly homophobic measure to invalidate same-sex couples. This created even more barriers and stigmatization for LGBTQ+ migrants, as now the main route of immigration was impossible for binational same-sex couples.

  • "A particularly interesting case is that of a Mexican woman, Sujey Pando, married to an American of the same sex. In this case, Pando’s immigration claim was deferred not because of her spousal relationship, but because of her mother’s refusal to apply for citizenship for her gay daughter because of her sexuality. Given that Pando’s mother 'obtained citizenship for her three sons, but not her daughter, because she is gay,'" (Shah pp 121).
  • "In many cases, such a partner has also suffered during the LGBT asylum applicant’s experience; however, the partner or spouse may not have been able to escape or gain entry to the United States, and is thus waiting for the asylum applicant to gain status so that the partner may be rescued. Yet, even if the partner left behind is obviously a spouse and factors greatly into the LGBT asylee’s claim of persecution, an LGBT asylee was not able to prevent harm to the spouse by providing relative/spousal or fiancé visa sponsorship" (Shah pp 122).

LGBTQ+ Migrant Experiences

In 1993, the government began granting visas to the same-sex spouses of legal non-permanent residents to visit them in the U.S.

1993: Same-Sex Spouse Visas

While this did allow more access for some LGB migrants to come to the U.S., it did not allow these migrants to gain citizenship- just to visit. This of course still greatly limits the number of LGBTQ+ people from being able to come to America.

In the case of Hernández-Montiel in 2000, the Ninth Court of Appeals granted them asylum based on their sexual orientation and sexual identity, setting the precedent that these characteristics are 'immutable' and therefore are unexpected to change.(Note: the term 'sexual identity' is used in this case to refer to what most people know as 'gender identity'/'gender expression.')

2000: Hernández-Montiel Case

By setting the precedent that sexual identity is an 'immutable' characteristic and therefore is unexpected to change, this decision allowed for transgender/gender nonconforming people to be granted asylum as well. This of course was a major step up.

Toboso-Alfonso was a gay Cuban man who sought asylum in 1990. He was the first personal able to convince the court that he faced a "well-rounded fear of persecution" due to his sexual orientation and gained asylee status.

1990: Toboso-Alfonso Case

This case was a major leap for LGBTQ+ migrants, as it allowed for many to take this route as a means to gain status if they were not eligible for spousal sponsorship. It also set the precedent to recognize homophobia as a valid push factor.

  • ~113,300 foreign-born individuals (naturalized citizens and noncitizens) are members of a same-sex couple.
  • ~54,600 of these individuals are not U.S. citizens.
  • ~32,300 same-sex couples are binational (one U.S. citizen and one noncitizen).
  • ~11,700 same-sex couples are comprised of two noncitizens.
  • ~7,000 same-sex couples that include two noncitizens (58%) are raising ~12,400 children under age 18.

LGBTQ+ Migrant Statistics

The U.S. v. Windsor case led to the repeal of Section 3 of DOMA. This means that same-sex marriages that were legalized in the 'place of celebration' were now federally recongized. In other words, if a same-sex couple go married in a place that legalized same-sex marriage, their marriage would be federally recognized anywhere in the U.S. The Board of Immigration Appeals (BIA) implemented the decision to apply to spousal sponsoship for immigration shortly thereafter.

2013: U.S. v. Windsor

This case serves as a major landmark cases for LGBTQ+ rights in the U.S. It allowed for many members of same-sex couples, both binational and domestic, to have access to gain citizenship status, reopening the door for those like Adams and Sullivan.

Obergefell v. Hodges overturned section 2 of DOMA. In 2015, the Supreme Court ruled that the marriages of Obergfell and other same-sex couples were now federally recognized, and all states must legally grant and recognize same-sex marriages. This ruling was granted based on the Due Process and Equal Protection Clases found in the 14th Amendment, and that marriage is established as a fundamental right.

2015: Obergefell, et al. v. Hodges

This 2015 ruling was defining for LGBTQ+ rights in America not just for citizens, but also for those seeking status. Now, binational same-sex couples may get married anywhere in the U.S. and then apply for spousal sponsorship for one to gain status.