LGBT Identity in Immigration

114 Pages Posted: 17 Aug 2013 Last revised: 6 Jul 2022

See all articles by Bijal Shah

Bijal Shah

Boston College Law School

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 undertake a close examination of asymmetries in the impact of LGBT identity on access to United States citizenship. It does so by exposing how patterns of LGBT access to citizenship have long been at odds with one another, as well as out of sync with domestic civil rights trends and fundamental U.S. immigration and human rights principles.

This examination focuses on the interplay of LGBT identity and the two major paths to immigration in the United States: asylum and partner-based benefits. LGBT identity has long helped noncitizens to immigrate permanently via grants of asylum, despite a concurrent lack of similar identity-based rights and protections for LGBT people harmed in the United States. On the other hand, LGBT identity has been a detriment to individuals seeking even temporary benefits on the basis of same-sex relationships with Americans, beginning prior to the passage of DOMA, 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 one-dimensional “status,” separated from “deviant” LGBT conduct that is problematic to American mores. The second is the continued national and subsequent legal 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, I trace these concepts of status and conduct throughout the Supreme Court’s major LGBT rights decisions, including the recent ruling in United States v. Windsor, and present their effects on immigration policy. Further, the uneven LGBT access to citizenship resulting from these factors has contradicted the executive branch’s international human rights discourse as well. This contradiction, in turn, illustrated a complex form of American exceptionalism resulting in part from the executive branch’s refusal to employ its significant discretionary power to improve LGBT access to immigration.

To shed light on the uncertain future of LGBT immigration, I present a retrospective analysis of the conflict between the United States’ expression of pro-LGBT human rights principles and implementation of anti-LGBT immigration policy, and suggest executive action that might have reduced this conflict prior to the repeal of DOMA. I also suggest that although Section 3 of DOMA has been overturned, dynamics limiting LGBT access to immigration will continue, in part because of the great role that states’ rights play in partner-based immigration determinations. Finally, I articulate the path required to ensure equal LGBT access to partner-based immigration benefits

Keywords: Executive discretion, Human rights, Immigration, Citizenship, Sexual orientation, Gender identity, LGBT, Nationalism, Exceptionalism

Suggested Citation

Shah, Bijal, LGBT Identity in Immigration. Columbia Human Rights Law Review, Vol. 45, 2013, Available at SSRN: https://ssrn.com/abstract=2304346

Bijal Shah (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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