LGBT IMMIGRATION ISSUES
Attorney John Nechman with Katine Nechman McLaurin LLP in Houston, Texas is one of America's most well known attorneys and activists on issues affecting gay, lesbian, bisexual, transgender, and HIV-positive immigrants. Katine Nechman McLaurin is ready to assist members of the LGBT/HIV community in all immigration needs. Among the key issues facing LGBT immigrants are the following:
1. Binational Same-Sex Couples
The U.S. is the only major western industrialized nation that does not allow its citizens the ability to confer immigration rights on permanent partners of the same-sex, including couples who are legally married. The Uniting American Families Act ("UAFA," H.R. 1024, S. 424) is a bill to amend the Immigration and Nationality Act to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents. UAFA was introduced to the U.S. House on February 12, 2009 by New York Congressman Jerrold Nadler and in the Senate on February 12, 2009 by Vermont Senator Patrick Leahy.
2. LGBT/HIV-Related Asylum
In 1994, former Attorney General Janet Reno declared Matter of Toboso-Alfonso, a Board of Immigration Appeals case, to be precedent, meaning that the BIA, Immigration Judges, and asylum officers are bound by its ruling. The case recognizes persecution based on sexual orientation as a potential ground upon which to apply for asylum. Since then there have also been some (though much fewer in number) non-precedential cases granting asylum based on transgender identity as well as HIV status.
3. Transgender Issues
According to guidelines from the U.S. Citizenship and Immigration Service, transgender immigrants should be able to obtain identity documents in the "outward, claimed and otherwise documented sex of the applicant," meaning that a transgender immigrant who has had sex reassignment surgery should be able to get identity documents in the corrected gender.
In 2005, the Board of Immigration Appeals in a case called Matter of Lovo-Lara affirmed a long-standing rule that if a marriage is valid when entered into under the laws of a state or country, it is valid for immigration purposes (absent a congressional statute, such as the Defense of Marriage Act, which precludes recognition of a marriage between two people of the same sex under federal law). In other words, there is no specific federal policy against marriages where one spouse is transgender; as long as it was legal when and where the marriage took place, it should be a valid basis for a marriage-based "green card" application.
4. Detention Issues
ICE currently detains about 200,000 immigrants a year, usually for visa violations or crimes. Confinement is usually in county jails and contract facilities under jail-like conditions even though immigration court proceedings are not considered criminal offenses. LGBT and HIV-positive detainees are particularly vulnerable and often the subjects of discrimination, harassment, and abuse. HIV-positive detainees suffer additionally from the substandard health care in place at many of these facilities.
Katine Nechman McLaurin: Treating Our Clients Like Family
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24 September 2020
Katine Nechman McLaurin LLP
1834 Southmore Blvd.
Houston, TX 77004
Toll Free: 866-752-3672