Misstep? State Department Posts First-Ever LGBT Travel Info, With Advice For Gay & Lesbian Americans Forced into Exile Because of DOMA

Former Senator John Kerry, Now Secretary of State, has long advocated for lesbian and gay binational couples

Former Senator John Kerry, who recently succeeded Hillary Clinton as U.S. Secretary of State, has long advocated for lesbian and gay binational couples

In an unprecedented move last month, the U.S. State Department (DOS) addressed the specific needs of LGBT Americans traveling abroad by posting a page entitled, “LGBT Travel Information” on its website. In addition to alerting LGBT tourists to inhospitable and dangerous places where they are at risk of being imprisoned or killed, the page rather strangely includes three immigration related questions, seemingly unrelated to typical travel advice.  Stranger still, the questions all relate to the Defense of Marriage Act (DOMA) in the context of same-sex binational couples. DOS advises that DOMA prevents gay Americans from petitioning for green cards for their spouses, and follows with this question: “How can I obtain a foreign residence and/or work permit so I can live abroad with my foreign national spouse/partner?” This rather straightforward acknowledgment, on a DOS website, that gay and lesbian Americans are forced to expatriate because of DOMA struck some as insensitive and surprising. (Obviously, we welcome the U.S. government offering meaningful assistance when relocation is necessary, but the DOS did not even come close here.) The actual answer to the proposed question provides a link that leaves gay and lesbian Americans who are contemplating exile to search through a list of embassies and consulates of other countries.  (More on that link, below.) We were left scratching our head at the juxtaposition of this Q&A series with the language at the top of the page that quotes former Secretary of State, Hillary Clinton. It strikes us as awkward, and that’s being charitable, for the administration to be championing the human rights of LGBT persons, while also acknowledging that it is showing the door to some lesbian and gay Americans because of DOMA.  The exile of lesbian and gay Americans is presented briefly and superficially, as if the tragedy of being uprooted from friends, family, workplace, and community, constitutes no more of a burden than planning a trip abroad.

“By fighting for the rights of so many others, we realize that gay rights are human rights, and human rights are gay rights.”  Secretary Clinton – December 6, 2011

The DOS website’s guidance is also inconsistent with the spirit of President Obama’s declaration (which remains posted on the White House website) that “Americans with same-sex partners from other countries should not be faced with the painful choice between staying with the person they love or staying in the country they love.”

We acknowledge that DOS may have been sincere in the effort to be helpful, believing that it can assist gay and lesbian Americans forced to leave their own country with links to foreign embassies. What we find objectionable is that this information is delivered by an administration that has refused to implement policies that would end the forced exile of gay Americans, such as humanitarian parole and deferred action.  By refusing to put such policies in place, the Obama administration is complicit in the continued exile of gay Americans, even as it declares DOMA to be unconstitutional and refuses to defend the law. We should expect more from a President who has spoken so eloquently about equality for lesbian and gay couples, who has directed his Department of Justice to aggressively fight DOMA all the way to the Supreme Court.

Even if well-intentioned, the guidance from DOS is a poorly conceived “how-to leave the United States” guide directed at lesbian and gay Americans.  We urge Secretary of State John Kerry, a long-time advocate for same-sex binational couples, to work with the Department of Homeland Security and the Attorney General, and offer real solutions like an LGBT-focused “How To Stay in the United States with Your Partner and Family” guide backed up by policies that keep our families together until the Supreme Court has ruled on DOMA.

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To make matters worse, the actual “information” provided to lesbian and gay Americans forced into exile is actually a link to a full list of prospective countries (Afghanistan through Zimbabwe) where they might find a refuge outside the U.S. However, as the State Department warns on the same page, many countries on the list are too dangerous for an LGBT American citizen to travel, let alone settle as a same-sex couple. Given the trauma and sacrifices that thousands of lesbian and gay Americans have suffered in exile, this sloppy approach to this issue is unacceptable. Rick, an American who has lived in exile for three years in Taiwan with his husband, Brian, notes:

“While we have lived in Taiwan we have had to deal with Brian’s mandatory military service, his travel restrictions, my effort to find employment, being forced to live in the “closet” as a gay couple, and my learning to adapt to a new language and culture. Why did all of this happen? Only because the U.S. government gives me no way as a gay American to sponsor my partner, the love of my life, for a green card. And so I am building a new life in Taiwan not of choice, but in exile.”

John Kerry, as the newly appointed Secretary of State, will have a vital role in assisting exiled binational couples in their return from foreign countries. As Senator, John Kerry was personally well aware that forced exile is not a “choice” for lesbian and gay Americans with a foreign partner, including many who were his constituents; as Secretary of State he should encourage the administration to develop a humanitarian parole policy designed specifically for same-sex binational couples and their families.  Humanitarian parole is just one necessary measure to protect same-sex binational families from further tragedy. The Obama administration can implement other policies that would keep LGBT families together and prevent exile in the first place.

    • The President should create a humanitarian parole policy that would allow the Department of Homeland Security to admit the foreign partners/spouses and children of lesbian and gay Americans as “parolees” immediately so that gay and lesbian binational couples who are currently in exile will immediately be able to return to the United States.
    • The President should instruct USCIS to stop denying fiancé(e) and marriage-based “green card” petitions for same-sex couples, and put all such cases in abeyance until the Supreme Court issues a ruling on the constitutionality of DOMA.
    • The President should extend deferred action for the foreign partner/spouses and children of lesbian and gay Americans who are already residing in the U.S. without lawful status.
    • The President should immediately put in place a moratorium to stop the deportations of the partners of gay and lesbian citizens, rather than leaving deportations to the discretion of individual deportation officers and ICE prosecutors.

These policies, long advocated by the DOMA Project, would allow the Obama administration to act consistently with its prior statements of support for gay and lesbian binational families.  In the stories of couples profiled by The DOMA Project, the need for the above policies (especially humanitarian parole) is overwhelmingly apparent.  These stories illustrate just a glimpse into the needless harm caused by the Obama administration’s continued reluctance to adopt interim policies to reunite binationals exiled by DOMA with their families in the U.S.

For any binational couple, uprooting one’s family is no casual matter, but making an impossible choice to leave behind an elderly parent in the U.S. or separate from a foreign partner overseas can be excruciating.  Few couples’ stories illustrate this better than DOMA Project participants, Martha and Lin, whose nearly 15-year commitment to one another and their children was threatened by DOMA forcing the couple to travel back and forth between the U.S. and the Netherlands every 6 weeks for nearly 2 years.  In 2000, Martha made the emotionally difficult and costly decision to relocate to Amsterdam from Silicon Valley, California.  Eleven years later, Lin wrote,

“One day [Martha] will have the right to live in the same country as her mother, her sister and her brothers, the country in which she was born – and to do so without having to leave me, her spouse, behind. We deserve that simple but critical right.”

Martha and Lin and thousands of binational couples like them have waited far too long.  Today, in 2013, binational families like Martha and Lin’s continue to be needlessly separated or exiled because the Obama administration’s failure to implement policies like humanitarian parole and deferred action.  There is no excuse for delay.

Exile affects not only binational couples and their children, but their extended families as well.  Jesse and Max,  one of the founding couples of The DOMA Project, are an American-Argentine couple who have been exiled in Europe for more than ten years.  They are sorely missed by their tight-knit American family.  Jesse’s sister, told The DOMA Project in 2011,

“until DOMA is repealed, my family will continue to suffer. My parents save their hard earned dollars to make the expensive journey to Europe once a year to see Jesse and Max, while we otherwise satisfy ourselves on their ability to make infrequent visits here. This injustice must end. I join other family members of binational couples who fight against this discrimination.”

Jesse’s mother adds,

“As an American and as a mother, I feel that it is important to add my voice to this issue and demand that my government cease discriminating against my son.”

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.