LGBT Identity in Immigration

114 Pages Posted: 17 Aug 2013 Last revised: 28 Jul 2015

See all articles by Bijal Shah

Bijal Shah

Arizona State University (ASU) - Sandra Day O'Connor College of Law

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.

By inadvertently mirroring the dichotomous cultural values reinforced by the Supreme Court’s major LGBT rights cases, the executive branch issued conflicting policy that protected those noncitizens who present a one-dimensional LGBT “status” in their asylum applications, while penalizing those LGBT noncitizens who, by creating queer families in the U.S., display LGBT “conduct” that offended American norms. 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 contradicted the executive branch’s international human rights discourse as well. Thus, over time, agencies’ anti-LGBT immigration policies even began to conflict with pro-LGBT human rights ideals voiced by agencies’ own (executive branch) leaders on the international stage. 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.

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)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Phoenix, AZ
United States

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