In Immigration Action, the LGBT Community Once Again Feels Left Behind

After fighting for inclusion, thousands of LGBT immigrants likely won't benefit from Obama's immigration plan.

Huddled inside the Congressional LGBT Equality Caucus's office on Capitol Hill in late July, at least half a dozen activists refused to leave. They assumed their posts on a summer's day, sitting, waiting, and fighting for inclusion.

Their demands: that recommendations helping LGBT undocumented immigrants be included in any executive action on immigration. And that the Congressional LGBT Equality Caucus issue a written statement saying just that.

The caucus met their request that week. But disappointment came months later as President Obama announced administrative action that halted the deportations of millions, yet left many LGBT immigrants languishing in the shadows.

Obama's unilateral action is still a "huge victory" for the immigrant community at large, said Paulina Helm-Hernandez, who participated in the July sit-in. But as the codirector of Southerners on New Ground—a regional LGBT rights group—she knows the plan won't include a large percentage of the LGBT community, which doesn't always fit the mold of a "traditional" family structure.

Obama's executive action did two main things. For one, it expanded DACA, or Deferred Action for Childhood Arrivals, a program meant to help undocumented immigrants who entered the U.S. illegally as children. This expansion affects up to 30,000 LGBT undocumented immigrants, according to the advocacy organization Immigration Equality. And at its core, Obama's unilateral move gave millions of undocumented immigrants with U.S.-born children a chance at deportation relief and work permits.

This is seen as a way to keep families together. Yet, many of the estimated 267,000 undocumented LGBT adults likely won't qualify for deportation relief, according to Immigration Equality.

"We have been told we have to wait. There has always been that dynamic," says Jorge Gutierrez, the national coordinator of Familia: Trans Queer Liberation Movement. "We feel pushed out."

Many more LGBT undocumented immigrants would have been helped if this link to family ties was cut, which Michael Jarecki, treasurer of the American Immigration Lawyers Association's Chicago chapter, says could have been done.

This doesn't mean the creation of a specific program just for LGBT individuals, Jarecki said, but rather providing temporary deportation relief to individual adults without the child qualifier. "It would have been a much, much bolder action," Jarecki said.

Many activists say Obama's executive order relies too heavily on the conventional definition of a family unit. They say Obama prioritized the needs of heterosexual immigrants above LGBT immigrants, even though many may be in physical danger if they return to their home countries.

"The immigration system is inhumane, and to live in a country where people could be deported to countries where they could be killed is un-American," says Felipe Sousa-Rodriguez, the deputy managing director of United We Dream.

In 2011, a United Nations report found there were more than 70 countries where being gay was a crime. In some places, it is even punishable by death.

There is a growing sense in the LGBT community that even as the immigrant movement makes progress, the LGBT cause has sometimes been put on the backburner to further the overall cause.

In 2013, Democratic Sen. Patrick Leahy of Vermont agonized over whether to include amendments in the Senate's comprehensive immigration bill that would have given same-sex, binational couples the ability to sponsor their partners for green cards.

Leahy was pressured to abandon the amendments out of concern that they would poison the immigration bill before it even made it out of the Judiciary Committee. Immigration was already politically contentious, and including protections for LGBT couples, many feared, would make it impossible to push the legislation to the finish line.

In the end, Leahy opted not to bring forth his amendments.

"With a heavy heart, and as a result of my conclusion that Republicans will kill this vital legislation if this antidiscrimination amendment is added, I will withhold calling for a vote on it," Leahy said in a statement in 2013.

Rep. Zoe Lofgren, D-Calif., says, however, that while the LGBT immigrant community may feel as though Obama's most recent action did not do enough to take their cases into account, the administration has taken extra care in handling LGBT immigration needs through other means.

Since 1994, the U.S. has considered fear of persecution based on sexual identity as a basis for asylum. Lofgren says that under the Obama administration, the LGBT community has had a "very robust opportunity" to get protections under those laws. After the Supreme Court struck down the Defense of Marriage Act in 2013, she points out, the Obama administration quickly instructed United States Citizenship and Immigration Services to issue same-sex binational couples green cards like those already available for heterosexual couples.

"The main thing is that the president couldn't do everything. He did a lot," Lofgren says. "You need a bill to do more. I hope my colleagues on the other side of the aisle who are so agitated about this will look in the mirror and see that they are the ones who should be legislating."

Democratic Rep. Raul Grijalva of Arizona says he's sympathetic to LGBT advocates who feel that their movement has been ignored.

"It was an exclusion," Grijalva says. "I support the president's order, but it did leave out a significant portion of the population."

Grijalva says he plans to work with the Congressional LGBT Equality Caucus over the next 180-day period to, at the very least, improve deportation conditions for gay and transgender immigrants who have faced hardship in ICE custody.

Transgender immigrants face a higher risk of sexual abuse while detained, according to a 2013 National Center for Transgender Equality report. Some transgender immigrants are housed according to their sex assigned at birth, which increases their vulnerability during their stay in detention facilities, the report states.

Grijalva says that aside from making it easier for immigrants to understand the asylum process, he'd like the Obama administration to consider more in-place parole options for immigrants within the LGBT community.

"We are going to try to remedy this," Grijalva says.