Story and photos by MATT ELLIS
For years there has been a struggle for the nationwide recognition of same-sex marriage. Some states have legalized the marriage of same-sex couples, but most have not and political battles wage on. At the center of the debate are liberties that are denied non-married couples. Though these discussions have taken a more prominent role in our culture over recent years, the implications of these policies on immigration have been discussed in far smaller circles.
The challenges that face same-sex couples where both partners are American citizens are compounded exponentially when crossed with issues of immigration, mostly because of the denial of rights that would normally be afforded to a couple trying to enter America.
Many pieces of legislation are under fire by those fighting for same-sex couples’ immigration rights, but the one that may be the most central is the Defense of Marriage Act (DOMA), passed in 1996. Section 3 of DOMA defines marriage exclusively as the union of a man and woman, and the word “spouse” as a reference only to a partner of the opposite sex.
Under these definitions, an American citizen can request citizenship for their partner so long as that partner is of the opposite sex. For same-sex couples, immigration to the U.S. can be vastly more complicated.
Mark Alvarez, an immigration lawyer in Salt Lake City, spoke at a panel at the University of Utah in October 2012 on the difficulties that face same-sex couples who want to immigrate to the U.S.
“It’s because of DOMA,” Alvarez said. “A same-sex couple cannot petition for normal family rights.”
Because an individual has no legal grounds for petitioning for the citizenship of a same-sex partner, the partner often has no way of achieving that status and is forced to leave the country with or without their companion.
Mariana Ramiro works with the LGBT Resource Center at the U. She is originally from Mexico City and has had personal experience with the difficulties of immigration.
She and her family immigrated here illegally, and lived illegally for more than a decade. She eventually got a green card and is now in a five-year probationary period before citizenship where she can still be deported for any reason.
Her partner is in a similar situation, which puts a great deal of stress on their relationship.
“I can be with my partner here, but if my partner ends up getting deported there’s no way to [bring us back together],” Ramiro said at the panel. “I either stay here and try to become a citizen, and maybe hope that in the future there is something that will change that I can bring my partner back. But realistically we are going to be separated unless I choose to go back there, but then that would disqualify me from citizenship.”
These fears are very real, even for those who have been legally married in the U.S.
Ortiz, who was born in New York, is an American citizen but because DOMA overrides local laws even he and his partner are not exempt.
Ortiz has tested positive for HIV and sometimes has to travel abroad to receive treatment. Garcia is unable to accompany him on those trips because he fears he would not be allowed reentry. When Ortiz’s father died Garcia couldn’t even attend the funeral in Caracas, Venezuela.
“You are putting yourself at risk for legal ramifications, for jail time, for pursuit under the state,” Max Greene, the advocacy coordinator for Equality Utah, said at the panel. “Those things prevent people from real meaningful relationships because you are already in the society where some of us aren’t valid. Imagine what that does to someone’s ability to be who they really are.”
But hope is on the horizon for couples like Ortiz and Garcia.
In 2011 the Obama administration announced that it found Section 3 of DOMA to be unconstitutional as it relates to issues of immigration, bankruptcy and public estate taxes. Though there has not been a formal repeal of the law, the administration decided that it would no longer be defended in court.
Eight federal courts, including the First and Second Circuit Court of Appeals, have also found Section 3 to be unconstitutional and as of 2012 several cases regarding immigration were awaiting a response to review in the U.S. Supreme Court.
Additionally, according to the Global Post, the Immigration and Customs Enforcement Agency has announced that deportation will not be a priority for illegal immigrants who have strong family ties in the U.S., specifically those in the LGBT community.
Many have compared the struggles of the LGBT community with the African-American civil rights movement and while that does entail subjugation and oppression, some are hopeful that the end result will be similar and that equality will soon emerge.
Alvarez is confident that, in spite of the political dealings moving at such a slow pace, America is ready for the next step.
“I think our society is [moving] forward,” the immigration lawyer said at the panel. “I firmly believe this country is on its way to marriage equality. The question is when, and I think it’s coming sooner rather than later.”