Administrative action on immigration must include LGBT immigrants

Frustrated with the Republican-controlled House of Representatives’ failure to advance immigration reform legislation, President Obama announced that he would move forward on his own before the end of the summer.  The president signaled that he would, through the use of the authority vested in the executive branch, provide affirmative relief to the nation’s long-term undocumented population.  Since then, however, the president stated that he would delay affirmative relief until after the midterm elections.  The delay, while inopportune, provides the president an opportunity to ensure that the administration’s forthcoming affirmative relief fully meets the needs of the undocumented community, including undocumented LGBT immigrants.

Media and advocates speculate that the administration will most likely implement—along with enforcement reforms—a program similar to Deferred Action for Childhood Arrivals (DACA) for a broader segment of the undocumented population.  This program would temporarily suspend deportations and provide employment authorization, likely for undocumented immigrants with legally-recognized relationships to citizens, lawful permanent residents, and DACA holders.

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While commendable, this approach—if undertaken by the administration—would disproportionately and punitively exclude the over 267,000 undocumented LGBT immigrants in the United States who are less able to establish those qualifying relationships.  Affirmative relief is particularly critical for undocumented LGBT immigrants, who face systemic abuse in detention, including excessive solitary confinement, frequent sexual assault, and inadequate medical care. 

Recognizing these inherent inequities, MALDEF and National Center for Transgender Equality, in conjunction with eleven other national LGBT, Latino, and Asian American advocacy and civil rights organizations, delivered a letter to the administration outlining the critical need for broad affirmative relief.  Limiting affirmative relief to only those with legally-recognized familial relationships willfully ignores the recency of positive changes in the legal landscape and the long-standing economic and social barriers that historically prevented undocumented LGBT immigrants from forming those relationships.

Until last year, when the Supreme Court struck down part of the Defense of Marriage Act, federal law essentially discouraged LGBT individuals from marrying by denying them federal recognition and benefits.  Moreover, while the country has recently witnessed a spate of favorable rulings in favor of marriage equality same-sex couples are still only able to marry in a slim majority of states, with the rest prohibiting same-sex marriage through laws, constitutional amendments, or judicial stays. 

LGBT individuals—especially low-income immigrants—also face substantial financial obstacles to adoption with the average adoption costing between $10,000 and $15,000 according to the Department of Health and Human Services.  For those with the monetary resources, LGBT individuals face legal barriers as 35 states have legal restrictions on adoption or have no express protections for prospective LGBT parents.  Due to these and other factors, the Williams Institute estimates that LGBT individuals have significantly lower rates of parenthood than the general population, with only 2% of children in the United States having a parent that identifies as LGBT.

In short, an approach to administrative relief that focuses on familial ties risks systematically excluding undocumented LGBT immigrants.  The solution is simple and straightforward: the administration must consider long-term residency—as an alternative to familial relationships—in determining who is eligible for affirmative relief.  This administration has a laudable legacy on LGBT rights; LGBT-inclusive affirmative relief would be a natural extension of those efforts and a continuation of that legacy. 

After more than a year of Congressional and presidential inaction on immigration, the stakes are high, and expectations even higher.  For Obama to meet those expectations, he must—without delay—enact robust and wide-ranging administrative relief that includes all immigrants.

Magana-Salgado is a legislative staff attorney for the Mexican American Legal Defense and Educational Fund  (MALDEF) who handles immigration issues with a focus on regulatory and legislative advocacy; Dessert is the executive director of Immigration Equality.