Immigration bans will keep some same-sex couples in “amor and exile”

Yesterday’s Supreme Court ruling striking down Section 3 of the “Defense of Marriage Act,” or DOMA, opens up the U.S. immigration system to same-sex couples. Tens of thousands of Americans are now able to sponsor their partners for immigration purposes, entitling them to green cards and eventual citizenship.

Glenn Greenwald
Glenn Greenwald, Guardian columnist in exile.

Binational couples celebrated the end of DOMA all over the world, as many have been forced into exile, unable to live in the United States legally with their partners. Glenn Greenwald, journalist for The Guardian who recently broke the NSA snooping scandal, lives in Brazil with his partner, David Miranda. They could now benefit from the end of DOMA by applying for a spousal or fiancé visa—they have already demonstrated to the Brazilian government that their relationship is the equivalent of a married couple, and Greenwald earned full immigration benefits there.

From Amor and Exile:

“Greenwald said that they would like to live in the United States at some point, as it would be convenient for his work as a frequent television and radio commentator. But they are also happy in Brazil. He also does not want to be a poster child for same-sex couples in exile, though he writes about it from time to time.

Greenwald, a frequent critic of President Obama’s continued War on Terror policies and other federal issues, says that the Obama administration’s refusal to defend DOMA is one of the best things the administration has done. The courts will overturn the law and immigration judges will be able to grant spousal benefits to same-sex couples, he says.”

Yesterday’s news proved that prediction correct. U.S. Citizenship and Immigration Services Director Alejandro Mayorkas told the American Immigration Lawyers Association conference in San Francisco today that the agency has been keeping track of immigrant visa applications from same-sex couples for the last year and will expedite their review, now that the agency officially has that authority.

But some percentage of the estimated 24,000 same-sex binational couples in the U.S. and the many couples living abroad will now face the same immigration hurdles that other binational couples like Nicole and Margo have faced—bans from the United States because of their immigration history.

Our book anticipated the end of DOMA in this way. Up until yesterday, all same-sex couples faced a different set of immigration barriers—the total lack of access to the immigration system. Today, many will face the same barriers that millions of straight couples have faced since 1996.

Greenwald’s immigration case is relatively straightforward since he met his partner abroad and Miranda has no immigration violations on his record. But J.W. Lown’s partner, whom I call Gabriel in the book, to protect his identity, is subjected to a 10 year ban, as is Jenny Phipps’ wife, Ottie.

J.W. Lown
J.W. Lown at his ranchito near San Angelo, Texas in May 2012, his first visit home since moving to Mexico.

Lown is the former mayor of San Angelo, Texas, a Republican, and for the past four years, a real estate agent in San Miguel de Allende in Central Mexico. Gabriel entered the United States illegally and stayed for more than a year, earning a 10 year ban. He contacted the U.S. Embassy in Mexico City recently and they told him he’s not even eligible for a tourist visa.

“He went to the embassy and they said to come back in 2019,” Lown told me this morning, adding that DOMA is a life changer. But it’s not going to be a simple visa application for J.W. and Gabriel—they are going to have to apply for an extreme hardship waiver and prove that it’s been a hardship for them to live abroad. J.W.’s story of fleeing south with Gabriel on the eve of his fourth swearing-in as the popular mayor of San Angelo, will probably help the application process, but they will need to consult a lawyer, go to the U.S. Consulate in Ciudad Juarez twice and take the risk of a denial, a process that is detailed in Amor and Exile.

Jenny and Ottie
Jenny Phipps and Ottie Pondman on their wedding day last year in Zoetermeer.

Jenny and Ottie are even further away, in the Netherlands, and are really unsure of how to proceed. They can’t afford a lawyer and are not even sure why Ottie has a 10-year ban.

“We don’t know how it’s going to affect us yet because Ottie still has that 10 year bar,” Jenny said. “We’ve just been kind of numb from the news. It’s like, what do we do now, what can we do now? Are we locked, imprisoned for the next six years?”

More than 900 people joined a conference call today with Immigration Equality, a group that has been fighting to overturn DOMA and help binational same-sex couples access the immigration system. They had questions about visa waivers, when to apply for immigrant status, how to explain previous tourist or work visas in light of new family-based applications and many other questions. Immigration attorney Prerna Lal posted this list of immigration benefits that the end of DOMA allows, along with a list of continued barriers for gay and lesbian couples.

Also today, the comprehensive immigration reform bill, SB 744, passed the U.S. Senate, and while it does not include any provisions specifically for same-sex couples, gay couples now have an equal stake in the bill, in the wake of DOMA’s demise. That means that eased hardship waiver provisions in the bill could help couples like JW and Gabriel and Jenny and Ottie as well.

The Senate bill now moves over to the House, which has its own, still unclear agenda on immigration reform. One thing is clear however: the marriage equality movement succeeded in a big way yesterday in convincing the nation that relationships forged in love should be treated equally, regardless of gender or immigration status. If that same momentum carries forward for the larger immigration reform effort, American citizens stand to benefit in numerous ways, not the least of which is the power to determine whom they choose to marry and where they choose to live.

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