RECENT LITIGATION AND CHANGES IN LGBT IMMIGRATION LAW
In 2009, the Department of State also issued a directive that gives equal benefits to same-sex partners of U.S. diplomats, including diplomatic passports.1
In February 2011, the Obama Administration announced that it would not defend DOMA’s definition of opposite-sex marriage in federal court challenges.2 However, the Attorney General also said that the Department of Justice would still “enforce” DOMA pending a legislative repeal of DOMA or a “final judicial decision.”
Following that announcement, with regards to same-sex bi-national couples generally, the Attorney General issued a precedential immigration decision in the case of a UK citizen who entered into a civil union with his U.S. citizen partner.3 The decision vacated the person’s removal order and remanded the case to the Board of Immigration Appeals “to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is implicated.” Importantly, the Attorney General’s decision does not allow immigration judges to grant immigration status or relief to persons who have a U.S. citizen or legal permanent resident partner of the same sex. It does, however, provide a basis for seeking to administratively close or continue immigration cases where that strategy may benefit the non-citizen.4
Some critics say that the Attorney General’s decision was a legal maneuver to keep legal challenges to DOMA out of federal courts for as long as possible. However, many of the LGBT litigators who are challenging DOMA in the federal courts prefer to have the courts first decide the constitutionality in a non-immigration case for legal strategy reasons that are beyond the scope of this manual.
In June 2011, after several years of pressure and advocacy on the part of undocumented youth to place a moratorium on all deportations, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo outlining new guidance on the use of prosecutorial discretion in a wide range of circumstances.5 The memo does not address LGBT immigrants directly but signals a greater commitment to using limited resources to enforce immigration law with an understanding of the need for measured action and fairness in the immigration context. With the use of the memo, immigration lawyers have been able to obtain deferred action or continuances for several same-sex bi-national couple clients in removal proceedings. It is too early to say whether the memo will generally lead to greater prosecutorial discretion for immigrants in removal proceedings. For more information on how to stop the deportation of your client or yourself post a final order of removal, please check the Education Not Deportation Guide.
The Heartland Alliance National Immigrant Justice Center has filed a lawsuit against the Department of Homeland Security alleging that jailers nationwide have deprived gay and transgender detainees of basic rights.6 These complaints detail denial of hormone replacement therapy, sexual assault, denials of basic medical care, arbitrary confinement, and severe harassment and discrimination against LGBT immigrants.
Deferred Action for Individuals Who Came to the U.S. as Children
On June 15, 2012, the Obama Administration released a memorandum in response to nationwide calls for an alternative path to citizenship for individuals that were brought into the country as children.7 Though not LGBT-specific, “deferred action” may provide some assistance to transgender individuals that came to the U.S. as children and meet the other eligibility criteria for deferred action. However, there are also several areas of concern with the new policy adopted by the Department of Homeland Security. For instance, the eligibility criteria is very narrow and will likely only apply to a small subset of people. To seek deferred action, the following criteria must be met:
• Came to the U.S. under the age of sixteen;
• Has lived in the United States continuously for at least five years before the date of June 15, 2012, and was present in the U.S. on the date of June 15, 2012;
• Is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
• Is not above the age of thirty.8
One of the major areas of concern with deferred action is that it is not a pathway to citizenship, as many immigration advocates had hoped. Instead, individuals that meet the above criteria, including members of the LGBT community, might be able to use deferred action as a way to temporarily slow down the removal process and/or receive work authorization during the period of deferred action. The memo clearly states that the new policy does not confer a “substantive right, immigration status or pathway to citizenship”9
Furthermore, even if someone qualifies for deferred action, the memo only encourages the exercising of “prosecutorial discretion,” meaning that cases will be reviewed on an individual basis, giving the Department of Homeland Security wide latitude in deciding who should receive relief and who should not.
The National Lawyers Guild strongly suggests seeking the advice of an experienced immigration attorney before considering submitting an application for deferred action because, in some cases, it could jeopardize an individual’s immigration case.
Immigration Status and Educational Access
Immigration status and access to higher education can be a serious issue for immigrants, especially individuals who came to the United States as children. Anecdotal evidence seems to indicate that transgender and gender nonconforming youth are disproportionately more likely to immigrate to the U.S. without the presence of an adult in order to escape the pervasive violence and discrimination they faced in their home countries. However, documented and undocumented students alike also face significant financial barriers and other challenges in pursing their education once they arrive in the United States, oftentimes due to lack of family support and restrictions on their ability to obtain financial aid and in-state tuition.
However, in California, the passage of the Dream Act of 2011 makes undocumented and documented students in California eligible for in-state tuition (usually much lower than tuition for international students and students from other states) and private scholarships.10 Starting April 2, 2012 (application dates: January 1 – March 2), they may also be able to access educational funding in the form of University of California (UC) and California State University (CSU) grants, California Community College Board of Governor’s fee waiver, Cal Grants, and other state-administered financial aid by submitting a Dream Act Application to the state student aid commission.11
Benefits for Same-Sex Domestic Partners of Foreign Service Employees, U.S. Department of State, June 18, 2009, Last visited August 1, 2012. ↩
Letter from Eric H. Holder, Jr., Attorney General, to John H. Boehner, Speaker, U.S. House of Representative, Re: Defense of Marriage Act, Feb. 23, 2011, Last visited August 1, 2012. ↩
Matter of Dorman, 25 I. & N. Dec. 485 (AG 2011). ↩
For more information about how Matter of Dorman impacts immigration cases, see the practice advisory entitled “Protecting and Preserving the Rights of LGBT Families: DOMA, Dorman, and Immigration Strategies,”, Last visited August 1, 2012. ↩
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, USCIS - U.S. Citizenship and Immigration Services, June 17, 2011, Last visited August 1, 2012. ↩
Civil Rights Complaint for LGBT Immigration Detainees, Heartland Alliance National Immigrant Justice Center, April 13, 2011, Last visited August 1, 2012. ↩
U.S. Department of Homeland Security Memo from Janet Napolitano Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf, Last visited August 1, 2012. ↩