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Washington Blade Op-Ed: Asylum Not the Answer for Binational Couples

by Victoria Neilson | The Washington Blade

Last week, the Blade published an article by immigration attorney Jason Dzubow entitled, “Obama can help bi-national couples,” in which he argued that the administration should issue a directive allowing the lesbian and gay partners of U.S. citizens to obtain asylum in the U.S. I agree wholeheartedly that the administration can and should do something immediately to help lesbian and gay immigrant families, but not by granting them asylum.

No one is more aware of the suffering and stress that lesbian and gay bi-national couples face than Immigration Equality. Immigration Equality is the only national organization that advocates exclusively for LGBT immigrants and their families. As the legal director, I speak to bi-national couples every day. For years, there has been no recognition of LGBT relationships in immigration law. In recent months, some deportation proceedings have been closed, some deferred action applications have been granted, and several federal courts have found the so-called Defense of Marriage Act unconstitutional. All this progress, in many ways, makes the fact that couples still need to wait for permanent relief that much more difficult.

In addition to the work Immigration Equality does on behalf of bi-national families, we are also the national leader on LGBT asylum issues, handling more than 300 such cases a year and training the government’s asylum officers on the subject. Under U.S. asylum law, the lives of countless LGBT people have been saved as they have fled countries where their sexual orientation or gender identity can lead to beatings, rape, imprisonment and even death. To win asylum in the U.S., or elsewhere, an applicant must prove that he or she has a well-founded fear of persecution in his or her country.  Persecution is an extreme concept – literally meaning fear for freedom or safety – and as such is fundamentally different from a lack of equality. If asylum could be granted based solely on inequality, women from much of the world would be able to win asylum.

Another problem with Dzubow’s suggestion is that the feared persecution must be in the foreign national’s country of origin. Thus, for example, if a Canadian man married an American man in Canada, it would not make sense for the Canadian to seek asylum in the U.S. when his own country affords him rights that the U.S. does not.

There is something that the Obama administration could do immediately, however, to provide relief to lesbian and gay bi-national couples. It could stop denying green card applications and hold them in abeyance, without making a decision on them, until there is a final judicial decision on the constitutionality of the Defense of Marriage Act. Federal courts in Massachusetts, New York and California have found Section 3 of DOMA to be unconstitutional and it is likely that the U.S. Supreme Court will decide the issue within the year. We have seen with the administration’s recent, courageous step to grant deferred action on behalf of DREAM-eligible young people that USCIS has broad powers to grant relief in compelling humanitarian circumstances. Living with the daily uncertainty and fear of separation from one’s spouse, while not persecution, is a daily harm that the administration could end by taking a similarly courageous step on behalf of lesbian and gay immigrant families.

Victoria Neilson is legal director for Immigration Equality.

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