What the United States Must Learn About Immigration Law and Same-Sex Couples

Vol. 30 No. 3

By

Susan Hazeldean is a staff attorney with the Peter Cicchino Youth Project of the Urban Justice Center in New York City. She provides free legal representation to LGBT and HIV-positive young people in all aspects of immigration law. Heather Betz is the director of the Lesbian and Gay Refugee Advocacy Project (LGRAP) at the Lesbian & Gay Immigration Rights Task Force, where she represents immigrants seeking asylum based on sexual orientation, gender identity, and HIV status. She has conducted trainings for Immigration and Naturalization Service staff on issues concerning the adjudication of asylum claims based on sexual orientation.

When Richard Adams applied to sponsor his Australian partner for immigration to the United States in 1975, the Immigration and Naturalization Service sent him the following response: "Your visa petition. . . . for classification of Anthony Corbett Sullivan as the spouse of a United States citizen [is] denied for the following reasons: You have failed to establish that a bona fide marital relationship can exist between two faggots." Letter from Immigration and Naturalization Service to Richard Adams (Nov. 24, 1975) (in STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 139 (2d ed. 1997)).

Had Richard Adams's life partner been a woman, she could have received a green card and eventually become a U.S. citizen based on their relationship. But, like the thousands of lesbian, gay, bisexual, and transgender (LGBT) Americans in relationships with a same-sex partner from another country, Richard Adams was out of luck. His loving, committed relationship to Anthony Sullivan did not matter under immigration law, and his attempts to secure legal immigration status for his partner were greeted with nothing but scorn.

One might expect that things would have changed radically since Richard Adams filed his immigration application in 1975. After all, hundreds of same-sex couples have now entered into civil unions in Vermont, and thousands of companies across the country offer domestic partner benefits to their employees. Even the U.S. Supreme Court is reconsidering whether same-sex couples have a constitutional right to engage in private, consensual sex in their own homes without fear of criminal prosecution.

But for the thousands of U.S. citizens like Richard Adams with foreign same-sex partners, nothing has changed. Americans may take it for granted that if they fall in love with a foreigner, they will be able to sponsor their partner for residency in the United States, but there is no such option for same-sex couples. It simply does not matter how long a couple has been together or how devoted they are to each other; if the partners are the same sex, their relationship is irrelevant for immigration purposes.

President George W. Bush has said that our immigration system should "recognize the importance of families and . . . help to strengthen them." Available at www.immigration.gov/ graphics/bushlett.htm. Family reunification is certainly supposed to be the primary goal of U.S. immigration policy. Americans can sponsor fiances or fiancees, spouses, parents, children, and siblings for residency in the United States, but no such provision is available for same-sex partners. Yet every day thousands of LGBT people are separated from their loved ones by our immigration laws. Imagine building a family and a life with the person you love only to have your partner barred from the country or forcibly removed from it.

This situation is even more outrageous when one compares the United States to the rest of the world. Sixteen nations around the globe have reformed their immigration policies to ensure that LGBT citizens can sponsor same-sex partners for immigration. Many of these countries have had such policies in place for many years. In fact, several nations enacted additional legislative or policy reforms to make it even easier for citizens to sponsor same-sex partners. All the while, the United States has changed nothing.

Nine countries (Denmark, Finland, France, Germany, Iceland, the Netherlands, Norway, Portugal, and Sweden) grant immigration benefits to same-sex couples as part of a broader partnership-recognition policy. In 1989 Denmark was the first country to enact legislation granting lesbian and gay couples marriage-like benefits. The Danish Registered Partnership Act created an institution similar to marriage except that it was restricted to same-sex couples and omitted access to church weddings, adoption, and reproductive technology. Since then, Finland, Iceland, the Netherlands, Norway, and Sweden have passed similar legislation allowing same-sex couples to become registered partners and enjoy most of the rights and benefits of marriage, including immigration benefits. On April 1, 2001, the Netherlands went a step further and became the first jurisdiction in the world to allow same-sex couples full access to marriage, with Belgium allowing marriages effective this summer. Many countries are also revisiting the few limitations imposed on registered partners.

France grants gay and lesbian couples immigration rights through a less comprehensive partnership scheme called the Pacte Civil de Solidarite (PACS). The PACS is open to opposite-sex couples as well as same-sex couples and is not intended to be parallel to marriage; it does not change a person's civil status from single to married, nor is a formal proceeding similar to a divorce required to terminate the relationship. It does, however, confer immigration rights.

Germany and Portugal enacted legislation similar to the French scheme. Germany passed a Registered Life Partnership Law in November 2000, which grants participating same-sex couples a limited number of legal rights including inheritance, tenancy, and immigration. Portugal passed a similar statute in March 2001, creating an institution called a registered union that grants same-sex couples a limited number of rights, including the ability to sponsor a foreign partner for immigration.

South Africans have been able to sponsor same-sex partners for immigration benefits since February 12, 1999, when the country's Constitutional Court handed down its decision in National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 2000 (1) BCLR 39, 69 (SA). Previously, the South African government granted immigration benefits only in heterosexual marriage relationships. The court unanimously held that failing to treat same-sex life partners equally was a violation of the South African Constitution's equality clause.

Even countries that fail to recognize same-sex relationships in other contexts have given couples immigration rights. Australia, Canada, Israel, New Zealand, and the United Kingdom reformed their immigration policies to recognize same-sex couples without granting the right to marry or creating an alternative partnership scheme.

These countries' policies have proved so successful that many subsequently reformed their policies to make it even easier for same-sex couples to qualify for immigration benefits. Canada initially permitted foreign same-sex partners to apply for residency under the humanitarian and compassionate grounds exception but now simply includes same-sex couples in its "family" immigration category. Australia, New Zealand, and the United Kingdom initially required evidence of long-term cohabitation before same-sex couples could qualify for immigration benefits based on the relationship. All three countries adapted their policies by reducing cohabitation requirements and probationary periods.

The European Parliament of the fifteen-member-state European Union/ Community most recently illustrated the international trend toward greater immigration equality for same-sex couples. On February 11, 2003, it approved a directive guaranteeing same-sex couples freedom of movement among member states equal to that of married heterosexual couples, where those same-sex relationships are recognized. Justification for the legislation was unambiguous: the European Union declared it must "reflect and respect the diversity of family relationships that exist in today's society" by including same-sex couples.

Given the pride that Americans take in our identity as a nation of immigrants, it is anomalous that the United States lags so far behind so many other countries on this issue. Fortunately, the needs of bi-national same-sex couples are at last beginning to attract some attention. On February 14, 2000, Representative Jerrold Nadler (D-NY) took an important step toward ending this discrimination by introducing the Permanent Partners Immigration Act (PPIA), which would grant same-sex couples the same rights as married heterosexual spouses under current immigration law. On February 13, 2003, the PPIA was reintroduced in the House of Representatives (H.R. 832). As of May, the bill had 107 cosponsors in the House, and plans are under way to introduce a companion bill in the Senate during the current Congress.

By inserting the words "permanent partner" next to "spouse" throughout much of the Immigration and Nationality Act (INA), the PPIA creates a mechanism by which U.S. citizens and permanent residents (green-card holders) may sponsor a same-sex partner for immigration. Because the PPIA's intent is to remedy the unequal treatment of same-sex partners, it would not affect unmarried heterosexual couples, who have the option to marry and seek relief under the INA.

To qualify a person as a "permanent partner," the couple must meet the following conditions: be in a "committed, intimate relationship"; not be married or in a "permanent partnership" with anyone else; intend a lifelong commitment to each other; and demonstrate that they are financially interdependent. To prevent fraudulent applications, the application process includes many of the same requirements that currently apply to heterosexual spouses. Before the foreign partner can obtain a green card, the partners must establish that they are in a bona fide relationship. Immigration authorities typically decide whether a marriage is bona fide by questioning spouses about their home life, habits, and history to determine whether the couple are truly committed in the long term, or whether they are engaged in a sham marriage. Permanent partners would be subject to a similar inquiry. The sponsoring "permanent partner" would also have to commit to providing financial support before the other partner could obtain immigration benefits based on their relationship. These requirements ensure that the PPIA protects same-sex couples in committed relationships while preventing fraudulent immigration applications.

By law, the costs of administering immigration programs in the United States must be completely covered by application fees collected from immigrants themselves. Including same-sex partners in our immigration laws would cost the American public nothing, nor would it create additional fiscal burdens for the federal government.

The United States adopted family reunification as the guiding principle of its immigration system so that Americans would not be separated from their loved ones. Failing to acknowledge same-sex relationships for immigration purposes is cruel, unnecessary, and unacceptable. It is time for the United States to stand with the sixteen countries around the globe that already recognize same-sex couples for immigration purposes. LGBT Americans deserve a legal regime that will keep their families together instead of tearing them apart.

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