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Jason Dzubow on Political Asylum

Want to Help Gay Couples with Immigration? Give Them Asylum

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I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years.* The two men started a successful business and are pillars of their community.* But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation.* This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act ("DOMA").



The Defense of Marriage Act: DOMAnd Dumber.



Last week, a federal appeals court struck a blow against DOMA.* The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional.* However, the First Circuit said "its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules" on the matter.* Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon.* We will have to wait and see.


In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner.*


If social conservatives can define "marriage" as a union between a man and a woman, why can't progressives define "persecution" as the forced separation of same-sex couples due to immigration restrictions.* When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.


Although this definition of "persecution" stretches the normal meaning of the term, there is precedent for such a move.* For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S.* Also, people who fear coercive family planning in China are eligible for asylum.* For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief.*


While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum.* In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996).* More recently, DHS determined that domestic violence could form the basis for asylum.


The Obama Administration has shown it can come up with creative solutions to difficult immigration problems.* Witness the new regulations on waivers.* Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver.* This often meant a long separation from family members while the waiver was processed.* Starting in January 2013, such aliens can apply for a waiver in the United States and-if the waiver is approved-they can obtain lawful status with only a brief stay overseas.


President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court.* So why not do something for the thousands of same-sex couples faced with forced separation?* Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners.* If DOMA is repealed or overturned, the government could re-visit this definition of persecution.* But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm.* We should grant asylum to gay and lesbian spouses of U.S. citizens.


Originally posted on the Asylumist: www.Asylumist.com.

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