Ask Lambda Legal: Immigration & Asylum
Ask Lambda Legal: Immigration & Asylum
Q:
My partner does not have legal residency status in the U.S. If we get married in California or Massachusetts can I petition for her legal residency as my spouse?

A:
First, a quick word about traveling to marry: Same-sex couples can currently marry in both California and Massachusetts, whether or not they live there. But out-of-state couples should think carefully before hopping a plane to tie the knot - especially if one partner lacks legal status in the United States. It's very important to get legal advice first about the consequences of marrying.

Unfortunately, the marriage victories being celebrated in California and Massachusetts do not affect the discrimination in our current immigration laws against gay and lesbian binational couples. Federal law alone governs immigration, and the federal government currently refuses to recognize same-sex couples' relationships or marriages for immigration purposes. Sadly, we've concluded that litigation in the area probably is premature given Congress's extraordinary power over this area and the Supreme Court's recent extremely conservative tilt, since courtroom losses can create bad precedent that sets us back years. There is an important congressional effort to fix this legislatively with a bill called the Uniting American Families Act. While this solution will likely take time, it holds hope for many of our families that suffer under current anti-LGBT immigration laws. If you'd like to see positive change on this front, contact your representatives in Washington, and for more information visit www.immigrationequality.org.

Relationship recognition isn't the only immigration issue we face, however, as LGBT people in many other countries continue to suffer persecution of horrifying proportions. Asylum remains one avenue for legal status for LGBT people who don't have a family relationship with a U.S. national, and face extreme persecution in their country of origin. Seeking asylum is very challenging generally and LGBT people have faced unique and steep barriers, though we have won some important progress in the courts in recent years. In the 1990s Lambda Legal represented a Russian woman named Alla Pitcherskaia who had been subjected to forcible psychiatric treatment to "change" her sexual orientation. This case helped establish that forced "conversion" therapy is persecution that can entitle gay people to asylum even if the foreign officials believe they are helping their victims. In 2000 we worked with several sister groups to overturn an immigration judge's decision that gay men who are persecuted because they are effeminate shouldn't be protected. And a couple years later we persuaded the Ninth Circuit Court of Appeals that it's wrong to assume that gay people can escape persecution by hiding their sexual orientation. After all, we don't assume people should hide their religious or political beliefs to avoid persecution. Despite success in some of these dramatic cases of persecution, however, these cases are very tough to win.