Crossing Borders

By Andrew Harmon

Originally published on Advocate.com August 05 2009 12:00 AM ET

Jet-lagged and nervous, Matthew lands at New York City’s John F. Kennedy International Airport dreading the next leg of the journey. He’s traveling home with his partner, a man with whom he’s spent the last 22 years in the capital of an undisclosed Middle Eastern country not known for its social tolerance. The drill is always the same: Somewhere between stumbling off the plane, shuffling through the jet bridge with passports in hand, and entering separate lines at immigration (“U.S. Citizens Only” and “Noncitizens”), the men go from intimates living in a strange land to strangers who avoid making eye contact through the glass wall that divides them. They take these precautions, Matthew says, because he fears that his partner could be barred from entry if there’s any evidence suggesting he might be enticed to stay in the United States.

Invariably, Matthew’s partner is pulled aside for questioning anyway. His Middle Eastern ethnicity and the impression that he’s traveling alone are red flags for immigration officers in the post-9/11 world. But he is not traveling alone, which is why Matthew’s dread turns into rage. “He is led off, I do not know where,” he says. “I want to help him. I want to ask what the hell they are doing with him, to keep their hands off him.… And I sob as I look through the glass.”

Matthew (not his real name) moved to the Middle East in 1986 for work. He doesn’t stay there because of its charm. Like many of the estimated 36,000 gay men and women who are by law ineligible to sponsor their foreign-national partners for permanent residency, he has three choices: Live in the United States with his undocumented partner and face uncertain consequences, live alone, or, as he’s chosen to do for the majority of his adult life, live with his partner overseas. Today, the two men reside in a quiet neighborhood of side-by-side town houses; they have separate entrances for keeping up appearances, though an interior hallway joins their two units. “This is the life we live,” he says. “It’s not a life of tragedy or bitterness. But it is a life of lying and hiding -- and not a life that an American citizen and taxpayer should lead.”

Perhaps it’s no surprise that the injustice faced by Matthew, his partner, and thousands of other gay couples historically has failed to achieve a critical mass of outrage, despite persistent grassroots efforts and a series of legislative attempts to address the inequity. Most Americans simply will never find themselves falling in love and building a life with a person who is forever forced into the “Noncitizens” line at JFK. Only 6% of same-sex unmarried couples are binational, according to one study by UCLA School of Law’s Williams Institute, a think tank focusing on laws regarding sexual orientation, and the affected couples who are active in lobbying for policy reforms have worked largely behind the scenes -- particularly if a nonresident partner is in the country illegally.

This year the landscape is changing. In June the Department of Health and Human Services enacted policy reforms that will bring down one long-standing barrier to immigration, a ban on HIV-positive foreign visitors (George W. Bush last year signed a bill into law approving the change but did not implement it). And in Congress two bills that would grant immigration rights to gay couples have given the issue unprecedented attention in the fractious battle over immigration reform expected to play out in the upcoming autumn legislative session. Should the bills be included in a larger immigration package (one that could ultimately include a path to citizenship for an estimated 12 million illegal immigrants), they could become a significant step for gay rights under the Obama administration. For the first time the federal government would acknowledge the rights of gays and lesbians to live in this country with their partner of choice, regardless of national origin.

The timing of the legislation is unclear. Democratic Senate leaders have pushed to pass a bill by year’s end but are mired in the colossal tug-of-war that is health care reform, and sources say a vote on immigration likely won’t happen until next year. Hispanic groups and pro-immigration lobbies that saw reform attempts in Congress go down in flames in 2007 also are cautious. “They want to do it right this time and move forward smartly,” says one lobbyist, “which means taking the time to build consensus.”

One element is certain: Gay immigration rights advocates have earned a spot at the bargaining table, and they have arrived with a much-needed spokesperson. In the early morning of January 28, Shirley Tan, a 44-year-old mother of 12-year-old twin boys, awoke to the sound of two U.S. Immigration and Customs Enforcement agents pounding on the front door of the Pacifica, Calif., home she shares with her female partner, Jay Mercado. “It was unbelievable, something you only see in movies,” recalls Mercado, 49.

Tan was detained for 14 hours at a San Francisco facility and fitted with an electronic ankle bracelet that she tried to hide from her children. A native of the Philippines, she fled her home country in 1989 after a cousin, who was convicted in the murder of her mother and sister, was released from prison following a 10-year sentence. Tan, who was also hurt in the attack, was denied political asylum and subsequent appeals. She faced near-certain deportation this spring were it not for what is known in congressional parlance as a private bill -- a law that applies to a particular individual or group. Sen. Dianne Feinstein of California introduced the bill in April, giving Tan a reprieve from deportation -- allowing her to stay in the States with her family -- until 2011.

The maneuver was no isolated incident of political mercy. In June, Vermont senator Patrick Leahy held the first congressional hearing on binational gay couples. Delivered in measured tones, Tan’s harrowing testimony -- and the unstoppable tears of one of her sons, who sat directly behind her -- created a rare moment of emotional drama for C-SPAN. Suddenly the Bay Area housewife was thrust into the role of national symbol.

“Until recently, this wasn’t on the radar for a lot of people,” says Steve Ralls, spokesman for the nonprofit legal aid and lobbying group Immigration Equality. “It’s really the little gay issue that could.” Ralls is fond of that sound bite, a turn of phrase that might be annoying if it weren’t true. While national gay organizations historically have paid scant attention to the topic as they juggle more marquee (and bankable) issues like marriage rights, Immigration Equality has lobbied key lawmakers and immigration rights groups with a staff of nine employees and a budget shy of $1 million (by comparison, the Human Rights Campaign, the nation’s largest gay lobbying group, has an annual budget of over $40 million).

Bills addressing immigration rights for gay couples have been percolating in Congress for almost a decade, but none have gained traction on Capitol Hill until now. One of the movement’s newest allies is California representative Mike Honda, a Bay Area Democrat who in June introduced a bill that includes gay couples in expediting immigrant family reunification. “I couldn’t say I was working for all families if I didn’t include a category of committed partners whom I would certainly consider to be equal,” Honda says.

The Uniting American Families Act -- a gay-specific proposal originally introduced in 2000 under a different name by New York representative Jerrold Nadler -- is part of Honda’s more expansive bill, known as the Reuniting Families Act. UAFA’s centerpiece is a new federal classification for same-sex relationships known as “permanent partners.” The criteria for that status range from the concrete (individuals must be 18 years or older and cannot be married to another person) to the complex (they must be “financially interdependent” and “intend a lifelong commitment”). Applicants would be required to “prove” their relationship with ample documentation, such as joint bank account statements, leases, mortgages, and adoption papers for any children dependent on both individuals. The process likely would be more rigorous for gay couples than for straight married couples seeking the same immigration rights, sources predict. “Apply any test you want,” Matthew says of the regulations. “We would pass every one of them.”

Immigration Equality’s lobbying strategy has worked so far, primarily because the organization focused extensively on building bridges with mainstream immigration groups and faith-based organizations, Ralls says. “For the first time, groups like the Mexican American Legal Defense and Educational Fund, the American Immigration Lawyers Association, and faith communities such as the Presbyterians, Episcopalians, Methodists, and others have come together in support of including LGBT families in a critical piece of larger legislation,” he says. “It’s an important lesson for the LGBT movement. If you can build coalitions outside of the community and work with those coalitions for inclusions in larger efforts, victory is possible.”

Not everyone is on board, of course. Conservative think tanks and influential religious organizations like the U.S. Conference of Catholic Bishops quickly denounced Honda’s bill as a poison pill for substantive reform.

The arguments against gay inclusion in an immigration omnibus bill are hardly surprising. Rampant sham relationships would overwhelm the system, critics argue. They also assert that any federal recognition of same-sex relationships is in violation of the 1996 Defense of Marriage Act, thus undermining traditional marriage. That argument makes Honda bristle. “I’m not expanding marriage rights,” he says. “But I am cognizant of the rights of partners in committed relationships. All citizens should be afforded the same legal right to apply for a visa for their partner.”

Backroom deals and last-minute trade-offs are the currency of Congress, and gay immigration rights are not exempt from such treatment. Supporters, however, point to several promising factors. Leahy, the Senate sponsor of UAFA, is chairman of the powerful Senate Judiciary Committee. Charles Schumer -- who is New York’s senior senator, a tenacious deal-maker, and chairman of the Judiciary Subcommittee on Immigration, Refugees, and Border Security -- is supportive of Leahy’s bill and is pushing for a comprehensive Senate bill to be crafted by Labor Day. “This is Leahy’s baby, and he’ll fight for it. Schumer knows that,” says one insider.

The Obama administration also has recently indicated support for UAFA: “The president thinks Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country,” White House director of specialty media Shin Inouye says in a statement.

Matthew has had to live with that choice for more than two decades. “But I’m hopeful,” he says, “and that hope sustains [us] until one day when we can go home.”