Rachel B. Tiven: Immigration Equality Now!

Rachel B. Tiven is the executive director of Immigration Equality based in New York City. Immigration Equality is a national organization that fights for the U.S. immigration rights of lesbian, gay, bisexual, transgender, and HIV-positive individuals. Founded in 1994 as the Lesbian and Gay Immigration Rights Task Force, Immigration Equality has grown to a membership of 10,000 people in cities across the country. Immigration Equality is funded by donations from members as well as private foundations.
Here’s Rachel…

What are some misperceptions about immigration to the U.S.?
Oh, many. [Laughs] First of all, there has come to be a belief in the current moment that immigration is bad for the United States. You can’t say that immigration is bad when all evidence of American history is strongly to the contrary. There’s really no question that America is a result of robust immigration from the beginning of the colonization process in the 17th century forward. Obviously, Native Americans may not agree, that is a significant footnote. But taking that aside for a second, everything about contemporary America that is exciting, engaging, and important, is a direct result of enthusiastic immigration to the United States.
I think another misconception about immigration is that it will always be appealing for people to come to the United States. People who are opposed to healthy immigration to the U.S., or people who are skeptical about it, often seem to believe that it is a given that people want to come to the U.S. They take it for granted that America will always be a destination for people from all over the world. I think we’re beginning to see, especially since things have really tightened up after September 11th, that talented people who have a choice about where to go will go elsewhere. The best and the brightest students from abroad will go to Oxford if they can’t go to Harvard. Or investors who can’t build their business in the U.S. or who can’t come to the U.S. themselves, they’ll go to the U.K. or to Australia or to Canada. People who are anti-immigration will wake up a generation from now and find that America is not the center of innovation and creativity as it has been at its best. That will be because people have been dissuaded from coming here.

I also think a lot of people think it’s easy to immigrate to the U.S. legally. Is it easy to get a green card?
No! [Laughs] About two-thirds of the people who come to the United States come on family-based petitions. And for every family category—parents of adult children, brothers and sisters—all of those categories have limits, a cap every year. If you’re from the Philippines or Mexico, you have an even tighter cap.
The only category of family immigration that has no limit is the opposite-sex spouse of a U.S. citizen. The easiest way for someone to come here is to be sponsored by their opposite-sex spouse. Of course, because there is no federal recognition of same-sex couples in the United States, and the immigration law is federal, there’s no way a same-sex couple could sponsor a partner for immigrations benefits. Even if they’re married in Massachusetts, married in Canada, or one of the four other countries that have full rights for married couples. So, it’s really a situation in which the primary ways people come to the United States is through family relationships, and everybody’s families count except gay families.
What do gay families who want to immigrate to the U.S. do then?
If you are in a same-sex, bi-national couple, meaning that you’re a gay couple and one person is American and the other person is not, you have three sets of options. One, if you’re lucky enough to get immigration benefits in the U.S. some other way. Usually through an employer, and if you do apply for an employment-based visa, that tends to let you at least get a green card or at least let you stay here temporarily. You manage to get benefits on your own unrelated to the fact that you have a U.S. citizen partner.
When the immigration service evaluates [opposite-sex] married couples, they ask, “Are you really in love with each other? Are you really a committed couple?� Gay couples that are deeply committed couples, who have been together for decades in some cases, that doesn’t count for anything. So, if the non-citizen is able to get benefits through an employer or, although we don’t find this terribly common, it could be through some other family relationship. If they have a parent or an adult child who happens to be a U.S. citizen. But again, those relationships have long waiting lists whereas a spousal relationship you have to wait a little bit, but there is no cap.
Many stay here under the radar. They stay here and become undocumented because they have no other option, or they move abroad. Which we call a love exile, somebody who has moved to a foreign country—the 19 countries that recognize same-sex couples for immigration purposes—and they’ll live there. Again, for some of those 19 countries, one person needs to be a citizen of that country. You can have a U.S. citizen partner that is a national of a country that does recognize same-sex immigration benefits. Then you can go to that person’s country. But for example, if one of you is American, and the other is from Mexico—we have quite a few couples where that’s the mix—they can’t get status here as a couple and they can’t get status in Mexico as a couple. If they can move to a third country where they can apply for immigration, like Canada, then that option may be open to them. Canada has been very welcoming to gay couples. Again if one of you is Canadian, it’s much easier to find a partner. But if neither of you is Canadian, you can immigrate to Canada only if one of you has a enough education and professional skill and a bunch of other criteria to qualify for Canadian citizenship.

Immigration Equality also works on asylum cases.
We do. The upside of LGBT immigrations cases in the United States, and it’s a little bit ironic, is although gay families are not recognized within the structure of the immigration system, you can win asylum in the United States if you are fleeing persecution on the basis of sexual orientation or gender identity. We have a very excellent track record of winning cases for LGBT asylum seekers. If you can show that you have a credible fear of persecution on the basis of sexual orientation or gender identity, in addition to HIV status, then you can win asylum.
Immigration Equality represents people directly and we also provide resources to attorneys all over the country who are representing LGBT asylum seekers. We have a terrific resources guide for lawyers on our website.
When you say persecution, does that also include persecution by one’s family?
That’s a good question. When you make an asylum application, you have to show that there’s a nexus between the persecution that you suffered and the government. You can show that the government persecuted you directly—that’s the strongest case. But you can also show that the government knew that you were being persecuted and willfully declined or failed to intervene. We have won cases for people where the violence and persecution they faced was in private and by their family. But we can show that the government knew about it or had reason to know about it and failed to stop that person from being harmed.
I think this is also particularly interesting for Feministing readers. We have found that it is tougher to win cases for lesbians than for gay men, in part because gay men are more likely to have more instances of public persecution. They are more likely to have run-ins with the police. The harassment that gay men face in countries where it’s dangerous to be gay is often more in the public sphere, whereas lesbians often face much more private family violence.
In general, there are just fewer lesbian cases at the moment. We have consistently had many more gay male cases than lesbian cases. In part because as hard as it is for men to come over and cross borders to get to the United States, for single women to leave their families—especially in countries that are more likely to be homophobic—it’s tougher for women to pick up and go. But we would like to see more. Anyone reading Feministing who is fleeing persecution on the basis of being a lesbian should definitely contact us. We’re also doing an increasingly large number of transgender cases—male-to-female, and female-to-male transgender people.

Do you think it’s because of lack of money or family ties that many lesbians do not seek asylum in the U.S.?
I think it’s a combination of things. Generally, I think it’s just harder for unmarried women. Occasionally, we have lesbians who are married. But for an unmarried woman to pick up and leave home to go to the U.S.—she might not have had a lot of access to education, or was not encouraged to be in the labor market in the same way—so family ties and economic ability affect her being able to just get up and go.
For men, one of the big things that we have found, and this is a September 11th fact, is it’s almost impossible for a single young man from a Muslim or Arab country to get a visa to come to the United States. It’s just become incredibly difficult.
To seek asylum in the United States, you have to be here. You have to be physically in the U.S. to apply for asylum. We’ll get emails: “I’m a gay man from Iran. If you can’t help me I’m going to kill myself.� Unless they can find a way to get here, there isn’t anything that Immigration Equality can do to help him apply for asylum.
Even though there’s this massive anti-gay activism in the United States, people are happy to talk about how backwards Muslim countries are in terms of their treatment of gays and lesbians. But it’s become so difficult for people from Muslim countries to get here, and it’s much tougher for them to apply for asylum.
What particular challenges do people living with HIV face when trying to become citizens of the U.S.?
There are a bunch of things that make it very, very difficult for people living with HIV or AIDS to come to the U.S. in the first place, or stay here if they’re here. There is a total ban on entry to the U.S. for anyone who is HIV positive. You’re not supposed to enter the country if you have HIV or AIDS, even if you’re just visiting. There is a complicated waiver that can get you around it but the waiver is not easy to get. Obviously applying for the waiver also announces that you’re HIV positive which many people are not particularly interested in doing. If the waiver was denied, that sort of limits their ability to come to the U.S. in the future if the law changes.
The way that the travel ban is implemented is when you’re coming from a country where you have to apply for a tourist visa, one of the things that you have to attest to on the application form is that you do not have a communicable disease of public health significance. Many people who are living with HIV and who are very healthy and are responsible about their behavior would say, “I don’t have a communicable disease of public health significance. You can’t get HIV from sitting next to me, or from sharing my [soda].� So, they answer no.
They can maybe come into the United States if they get that form or come from a visa-waiver country like France or the U.K. where you don’t have to apply for a VISA if you’re only coming for a short time. But if Customs finds HIV meds in your suitcase, they can turn you around and put you back on the plane. We get calls from people who are at the airport saying, “They found my HIV meds. They’re telling me that I have to get back on the plane. Is this legal?� It’s totally legal under current law for somebody with HIV to be denied entry into the United States. Anecdotally, we don’t have hard data on this, but it certainly seems that men who look “gay� or people from African countries are more likely to have their luggage searched for HIV meds than are people who don’t fit these characteristics.
The other piece of the HIV puzzle for immigrants is there is a ban on adjusting your status to become a green card holder if you’re HIV positive. Let’s say you’re here on a student visa. You came to go to college in the U.S. You have your student visa for four years in college, and while you’re in college, you contract HIV and become HIV positive. Let’s say after college you stay and work for a company that sponsors you with a high-level work visa and they sponsor you for a green card. Even if you’re otherwise totally qualified for a green card, if you’re HIV positive, you can’t take the green card. Even if you’ve been here for years. Even if you got HIV while you were here. Even if you’re totally healthy, productive, and functional.
There’s no reason why you’re any more of a danger than anybody else. There is a waiver to that, but again, this is where gay couples are really significantly discriminated against in terms of having access to the waiver. You need a U.S. citizen or green card holder—parent, child or spouse—to be able to qualify for the waiver. Again, spouse means opposite-sex spouse.

What do you think about illegal immigration? And what do you think needs to happen, if anything?
Obviously there needs to be a way for people who come here, who work hard, who contribute to their communities, and to the country as a whole, to eventually be able to regularize their status. It is not acceptable to have a permanent underclass of people who can never become citizens.
Many immigrants pay taxes. They pay income tax directly, and almost everyone who works, their employer is paying a social security tax on their labor. There was a recent estimate that 10 percent of the pot of social security is being paid for by undocumented workers who are putting money into the system. Social security knows that there are people paying in who will never be able to collect.
In terms of proposals that have been flying around, to deny birthright citizenship to children of undocumented immigrants is just racist, there is no other word for it. The definition of citizenship in the United States was a direct result of the Civil War. America used to have a class of people who worked hard, were denied citizenship and every benefit and equality. That was called slavery. The right of citizenship in the United States by birth in America is one of the most fundamental pieces of what it means to be a fair and equal society.
The kinds of things that anti-immigration people say are just mind bogglingly racist. That said, I think there were a lot of short comings in the proposals on the table. Obviously Immigration Equality’s first and foremost commitment is to LGBT and HIV positive immigrants. The immigration reform proposals that were on the table, despite a lot of negotiation, were not at the point of including gay families, and the HIV ban was going to be a part.
There needs to be a total overhaul of the system so that people who have been here undocumented and working hard can have some path to citizenship that recognizes their efforts. But also so that the people who have worked very hard to stay in status aren’t shut out. For example, Immigration Equality represents those people who are here undocumented because they desperately wanted to stay with their partner and had run out of options. Their only option at that point was to leave the country and be separated from their partner or to stay here out of status. Obviously their out of status is a direct result of gay discrimination in the immigration law and they should be recognized as a family member to stay here with their partner. But at the same time, we represent couples who have worked extremely hard to juggle visas of all different kinds. People who have gotten graduate degrees they didn’t want so they could stay on a student visa. Who started businesses they otherwise would not have started so they could get business investor visas. Who have taken jobs they hated, or stayed in jobs they hated, so that they could stay in legal status. There’s got to be reform at the top as well as at the bottom. It would be perverse if we got an immigration reform packet that helped less skilled workers who are undocumented but didn’t provide any relief for highly skilled workers who are having a hard time staying here.
Is there anything you would like to add?
I think Feministing is a great site. And I think of all this stuff—Who gets to come here? Who’s work is recognized and why? What work is valuable?—are feminist questions. I think it’s important to recognize the diversity of what the immigrant experience is, and I think it’s something that is very much a feminist concern.