Tuesday, September 3, 2013
LGBT Identity in Immigration by Bijal Shah, Columbia Human Rights Law Review, Vol. 45, 2013
Abstract: The partial invalidation of the Defense of Marriage Act (DOMA) and national focus on comprehensive immigration reform has brought lesbian, gay, bisexual, and transgender (LGBT) immigrants to the forefront. This Article is the first to substantiate the historical impact of LGBT identity on access to United States citizenship and to undertake a close examination of its contours and consequences. This Article focuses on the interplay of LGBT identity and the two major paths to immigration in the U.S.: asylum and partner-based benefits. Patterns in LGBT access to citizenship have generally been at odds with cornerstone U.S. immigration and domestic civil rights trends. LGBT identity has long benefited those individuals seeking U.S. citizenship via the asylum process, despite a concurrent lack of similar identity-based rights and protections for LGBT people within the U.S. However, LGBT identity has also obstructed individuals seeking even temporary residence on the basis of same-sex relationships with Americans, even though partner-based benefits are a cornerstone of immigration law. This dynamic has been based on two factors. The first factor is the legal reduction of asylees’ LGBT identities to a tolerable, one-dimensional “status,” fully separated from problematic or “deviant” LGBT conduct. The second is the continued national censure of this LGBT conduct, which includes the establishment of romantic partnerships, growth of extended families and development of visible LGBT communities. To substantiate this claim, this Article traces the concepts of status and conduct throughout the Supreme Court’s major LGBT rights decisions, including the recent ruling in United States v. Windsor, and applies this study to the immigration context. Further, the uneven LGBT access to citizenship resulting from these factors has generally contradicted the U.S. government’s international human rights discourse. This contradiction, in turn, has illustrated a complex form of American exceptionalism resulting from the executive branch’s consistent refusal to employ the significant discretion it enjoys in the immigration context to improve LGBT access to immigration benefits. Although Section 3 of DOMA has been overturned, these dynamics will continue, in part because of the great role that states’ rights play in partner-based immigration determinations. Within the context of this analysis, I present a backward-looking critique outlining immigration law and policy strategies that would have mitigated the longstanding conflict between the U.S.’s expression of pro-LGBT human rights principles and implementation of anti-LGBT immigration policy, regardless of DOMA. Then, I look to the post-Section 3 future and articulate the path required to reach equal LGBT access to partner-based immigration benefits.