In 2014, I had the privilege of representing two extraordinary young asylum seekers who had fled from Macedonia, where, because they are a gay couple, they had suffered extreme homophobic violence and sexual abuse at the hands of civilians and police officers. In 2021, I had the honor of helping them become U.S. citizens.
In reflecting on my clients' seven-year journey to United States citizenship, I am reminded of how much has changed, but also how much has unfortunately remained the same and how far we have yet to go in the pursuit of LGBTQ human rights both at home and abroad.
The first of my two Macedonian clients arrived in the U.S. in 2012, and the second client joined him here in May 2013, just one month before the U.S. Supreme Court's landmark decision in United States v. Windsor, 570 U.S. 744 (2013). In Windsor, the U.S. Supreme Court declared unconstitutional Section 3 of the federal Defense of Marriage Act ("DOMA"), through which Congress had sought to define "marriage" and "spouse" in more than 1,000 federal laws and federal regulations in a way that excluded same-sex spouses, thereby depriving them of the benefits that would come with federal recognition of their marriages and imposing "a disadvantage, a separate status, and so a stigma upon all who enter same-sex marriages." Id. at 770. The Supreme Court found that DOMA deprived gay and lesbian married couples of equal liberty under the Fifth Amendment because it interfered with the equal dignity of marriages under State laws recognizing marriage between same-sex spouses.
Prior to the Windsor decision, derivative asylee status was only available to heterosexual spouses. Gay, lesbian, and bisexual asylum applicants were barred from obtaining derivative asylee status for their same-sex spouses because federal immigration law did not recognize the validity of marriages between same-sex individuals.
The timing of the Windsor decision was critical for my Macedonian clients, who married in New York in 2013, were referred to me by Immigration Equality in 2014 and, in January 2015, became one of the very first gay couples in the U.S. to seek and win asylum as a married couple following the fall of DOMA. Because the client who had arrived in 2012 had not applied for asylum before his one-year filing deadline, including him as a derivative beneficiary of his husband's timely asylum application was an advantage that would not have been possible but for the Windsor decision.
In 2016, I assisted my Macedonian clients in obtaining Legal Permanent Residency - beginning a five-year clock toward naturalization. That same year also signaled the beginning of a tremendous and devastating shift in the federal government's immigration priorities. The next four years brought an incessant wave of anti-immigrant changes in federal policy, practice, and law, culminating in the 2020 Proposed Rule on Procedures for Asylum which, had it gone into effect on January 11, 2021 as intended, would have had life-threatening consequences for LGBTQ and HIV-affected asylum seekers. Among other harmful changes to asylum law, the Proposed Rule would have drastically narrowed the definition of "persecution" such that LGBTQ asylum seekers living in countries that criminalize LGBTQ identities would not have been able to win asylum unless they could show that those persecutory criminal laws had been or would be applied to them personally - a requirement that unreasonably expects LGBTQ immigrants to expose themselves to the risk of arrest and prosecution before they can obtain asylum. I am proud to have submitted a public comment letter on behalf of the Anti-Violence Project, one of many LGBTQ rights organizations that joined forces to oppose the Proposed Rule, and to support Immigration Equality's life-saving work as a member of their Associate Board.
On January 7, 2021, my Macedonian clients became U.S. citizens and, in their own words, were finally able to get their first night of peaceful sleep after more than seven years living in fear of deportation to Macedonia, where their homophobic persecutors would kill them. One day later, on January 8, 2021, Immigration Equality won a preliminary injunction from the U.S. District Court for the Northern District of California blocking implementation of the Proposed Rule on Procedures for Asylum.
But the fight for LGBTQ immigrant justice is far from over. According to the most recent U.S. Department of State Country Report on Human Rights Practices, violence against LGBTQ individuals in North Macedonia remains a significant human rights issue, with more than 70 LGBTQ individuals suffering physical attacks, and many more facing hate speech, discrimination, and societal prejudice in 2019.
Same sex relationships and LGBTQ identities continue to be criminalized in more than 70 countries around the world, and in the U.S. LGBTQ people continue to face an epidemic of hate crimes. It will take time for immigration advocates and the new federal administration to undo the damage of the last four years, and the need for pro bono legal representation of LGBTQ survivors of violence will not end any time soon, but I have hope that the next four years will bring great strides toward LGBTQ human rights and immigrant justice.
A Seven-Year Journey From Asylum To U.S. Citizenship: Reflections On LGBTQ Immigrant Justice
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
