WASHINGTON — Undocumented LGBT immigrants are criticizing President Barack Obama for excluding them from his immigration plan, even as they are happy to see members of their families and communities freed from the fear of deportation.
The president announced last week that he would grant short-term deferred action and working rights to parents of U.S. citizens and legal permanent residents who themselves have been in the country for at least five years. But lesbian, gay, bisexual and transgender immigrants say that the plan doesn’t equally value their family relationships. Undocumented LGBT immigrants may be less likely to have U.S. citizen children due to marriage and adoption laws, while they may have critical ties with U.S. citizen nieces and nephews.
LGBT immigrants also have a compelling need for deportation relief, advocates argue, for they often face homophobia and violence in their home countries and a high risk of victimization in U.S. detention facilities.
Last week, a coalition of LGBT and civil rights organizations urged the president to make length of residency in the United States an alternative criteria for relief, in addition to parenthood. Legal experts contend that Obama had adequate legal precedent to extend deferred action to LGBT immigrants, if he chose to do so.
Alejandro, who lives in Chicago and is not using his last name for fear of job loss, is one of the roughly 267,000 undocumented LGBT-identified adultsliving in the United States. He came to the U.S. from Mexico about 15 years ago and is not eligible for deferred action under Obama’s plan because he does not have children. He told The Huffington Post that he was glad many people would be helped, but “very disappointed” that so many LGBT immigrants aren’t covered, especially given that Obama has “said he is friendly with the LGBT community.”
“A lot of us, we have been in support of his agenda, and now we know he’s not in support of us,” Alejandro said.
Jonathan Perez, cofounder of the Immigrant Youth Coalition, is a 27-year-old undocumented asylum seeker who came to the U.S. from Colombia as a child and identifies as queer. He said Obama’s action re-enforces the idea that there are “good” immigrants — parents and students — and “bad” immigrants. “The good immigrants get something, and then everyone else is going to be criminalized. That’s how we’re taking this. It’s not even a victory,” he said.
The executive action “will not reach most LGBT people who need it,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a statement last week. “Though the President has been a champion of LGBT equality, he still must do more to protect LGBT immigrants.”
The backlash shows how the decades-old practice of building immigration reform around traditional family units is complicated in 2014. On one hand, Republicans are already threatening to stonewall the president’s attempt to extend deferred action to immigrant parents, contending such action is unconstitutional. On the other, limiting relief to such a narrow group of people fails to take into account the full demographics of immigration populations, advocates say.
It also leaves a vulnerable population still looking for help. Last year, the Center for American Progress found that LGBT immigrants are 15 times more likely to be sexually assaulted in immigration detention facilities than other immigrants.
“Transgender women in particular at at extreme risk because ICE [Immigration and Customs Enforcement] houses them in men’s jails,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality.
LGBT immigrants are often seeking asylum to escape discrimination and persecution in their home countries. Diego Ortiz, communications director for Immigration Equality, told Bloomberg that he has seen a large increase in LGBT people seeking asylum from countries where homophobia is rampant, like Uganda and Russia.
In 2011, Perez spent five days in prison and 10 days in a detention facility, an experience that he said continues to traumatize him. As a LGBT person, he said, he has become accustomed to finding ways to “maneuver … around the homophobia.” But in detention, “there’s no way out. … I almost felt like I got thrown back into the closet,” he said, because he didn’t feel safe revealing his sexual orientation.
Obama draws his legal authority to take executive action on immigration in part from a longstanding principle known as “prosecutorial discretion.” Basically, there aren’t enough government resources to tackle every single crime, so the government has to choose which people pose the greatest danger to society. Under this precedent, the president has said that if undocumented immigrants meet specific criteria, they will not be a priority for deportation.
Greg Chen, director of advocacy at the American Immigration Lawyers Association, said the president has the authority to grant deferred action for individuals who meet certain criteria, as long as the Department of Homeland Security isn’t prioritizing their deportation because of safety concerns.
“That set of criteria could very well encompass LGBT individuals,” Chen said, if “there’s an interest in the government to focus on that population.” The coalition of LGBT groups contends that the threat of discrimination is a compelling reason to grant relief.
Philip Wolgin, a senior policy analyst on the immigration policy team at CAP, said, “We strongly believe the legal precedent does support granting deferred action to groups of people.” In the past, executive action has been used, for example, to protectCubans escaping communism.
CAP notes in a blog post that the president’s action is expected to have some positive effects on LGBT immigrants — by protecting LGBT immigrants married to U.S. citizens from long separations and reducing deportation for illegal re-entry. But for now, undocumented LGBT immigrants without children continue to face the risk of deportation.
Ramon Madera, who is a gay undocumented immigrant, works with the immigration committee of PICO, a faith-based community organizing network. The 36-year-old said that he too is happy for all the people who will qualify under Obama’s plan, including his sister. But he said that when he heard the announcement, he was also ”confused and disappointed.”
“There’s no way I want to go back,” he said of returning to Mexico. “I know one thing: I’m afraid to go back to my country.”
CORRECTION: An earlier version of this story said incorrectly that LGBT immigrants are often seeking amnesty. They are often seeking asylum to escape persecution.