by MARK GABRISH CONLAN
Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
LISTEN TO THIS EVENT! Download links:
DACA (Ginger Jacobs): https://rapidshare.com/files/3805791425/01S.A.M.E._Centro Forum_ 9_29_12 _radio edit_DACA_.mp3
Queers and Immigration (José Medina, Ginger Jacobs): https://rapidshare.com/files/734526852/01S.A.M.E._Centro Forum_ 9_29_12 _radio edit_Queers_.mp3
Artworks exhibited at the event
San Diego’s Centro Cultural de la Raza was the scene of a politically and historically important event Saturday, September 29: a forum on Queers and immigration co-sponsored by the Centro and the San Diego Alliance for Marriage Equality (S.A.M.E.). According to Cathy Mendonça, long-time S.A.M.E. activist and recent appointee to the Centro’s Arts Advisory Commission, this was the first time the Centro had produced an event in collaboration with an organization openly advocating for Queer equality, though openly Queer people —including the late Aïda Mancillas, formerly the Centro’s director — have been involved with it before.
Mendonça produced the event, and her partner José Medina MC’d and started the program with an impassioned speech about the long-standing connection between the immigrant rights and Queer rights movements. But the featured speaker was immigration attorney Ginger Jacobs, who spent half her presentation outlining the controversial and confusing new immigration program known as DACA — “Deferred Action for Childhood Arrivals” — and the other half addressing audience questions regarding Queer people, particularly Americans involved in relationships with foreign nationals, and their rights (or lack of same) under current and likely future immigration laws.
“We’re Aware of the Difficulties”
“I was born in Mexico in 1966,” Medina said. “My father found work in the San Diego tuna canneries, Bumble Bee in the Logan area, when the canneries employed thousands of people in union-protected jobs with good wages. My whole family moved to the U.S. in 1969, and I got my citizenship papers in 1987. I’m very aware that I’m a lucky person in dealing with the U.S. Immigration Service. My parents had the time to cut through the red tape, get in that line and ‘wait our turn’ for our papers, as the Right-wingers like to say.” But, he added, he was well aware of the pressures on undocumented people that cause them to immigrate, not only from Mexico and Latin America but Africa and Asia as well: “Hungry faces on their children will cause a parent to do impossible things. A parent will risk death in the desert, and will risk imprisonment under cruel laws passed by cruel hypocrites, who in turn eat very well from the literal fruits and vegetables that come from the labor of low-wage immigrant workers.”
Medina reviewed the history of Queer involvement in immigrant rights issues as well as the Latino civil rights movement — starting in spring 1969, when the Committee on Homosexual Freedom (CHF) in San Francisco, which staged militant Queer rights actions months before the June 1969 riots at the Stonewall Inn in New York City, joined the United Farm Workers’ (UFW) campaign to boycott Safeway over their sales of non-union grapes. “They picketed alongside [UFW members and straight supporters] with signs such as, ‘Gays Out of Safeway,’” Medina said. “In spite of some hostility from a few, [UFW founder] César Chávez himself and most of the UFW welcome the Gay Liberation Front’s assistance and respected them for it.”
According to Medina, since S.A.M.E. was founded in November 2008 after California voters approved Proposition 8, which banned the state from legally recognizing same-sex marriages, it has consistently been involved not only in marriage equality and other Queer liberation struggles but labor, anti-war and pro-immigrant rights. He recalled S.A.M.E.’s involvement alongside labor activists outside the Manchester Grand Hyatt, targeting hotel owner (and now U-T San Diego publisher) Doug Manchester both for his anti-union employment policies and his donation of hundreds of thousands of dollars in seed money to get Proposition 8 on the ballot.
“In 2009 there was a march from City College to the downtown office of U.S. Senator Dianne Feinstein to demand that she support humane immigration reform,” Medina said. “I and a few of my LGBT [Queer] colleagues marched with a rainbow flag. Reaction to the flag was not anger, not resentment, not disgust — ‘Oh, look at the Gays piggy-backing on this issue for attention’ — there was none of that. It was curiosity and puzzlement: ‘Gays? Immigration? La Migra? Marriage equality? How do you make the connection?’ Well, just as immigrants have been scapegoats for the nation’s troubles, so Lesbians, Gays, Bisexuals and Transgender people have also been scapegoats as well. Harassment and discrimination, on the job and elsewhere, are familiar to immigrants and LGBT people alike. And if you’re an LGBT person who wants to or has immigrated to the U.S., there are stories of despair and of hope that can be shared by other immigrants.”
In 2010, Medina said, S.A.M.E. joined immigration rights advocates to call President Obama to account for his failure to push for comprehensive immigration report, and also participated in the protests against Arizona’s infamous SB 1070, a law that requires local law enforcement officials to demand that suspected “illegal” immigrants show papers and prove they have a legal right to be in the U.S. or face being turned over to federal authorities for deportation. S.A.M.E. joined massive protests against this law both in San Diego and in Arizona. “I even spoke at a rally on May Day, 2010 comparing that law’s effect on Latinos to the profiling of Jews and Gays in Germany in the 1930’s,” Medina said.
The most moving part of Medina’s presentation was a series of stories of individual Queer immigrants, many of them also involving U.S.-born Queer citizens who love them and, unlike straight Americans who fall in love with and marry people from other countries, can’t arrange for them to come to the U.S. so they can live here as a couple legally. “Lee, a young woman who emigrated here from South Africa when it was still under apartheid, got a work visa as a nanny,” Medina said. “While working here, she realized that she was Gay. She became frightened of what would happen to her on her return because the apartheid government could arrest you and put you in prison just for the ‘crime’ of being Gay. Lee stayed in the U.S. when her visa expired, fearing imprisonment. Thus she became ‘illegal,’ leading a life of hiding for years. While living this life, hiding, Lee met and fell in love with a woman. They became a family, with twin boys, for about 10 years. However, they separated. Lee was the primary caregiver for the boys, but because she was ‘illegal,’ she could not go to the courts for custody. She had no legal ties to her boys, and upon discovery in court of her ‘illegal’ status, she could face deportation, loss of her family, and imprisonment under that racist regime.”
Medina also told the story of Janet Dagley, “mother of two kids — a straight daughter and a Gay son. Her daughter fell in love with and married an Irishman. She sponsored him to emigrate to the U.S. Janet’s son fell in love with a man from the Czech Republic, but he is not allowed to sponsor his loved one to emigrate. Janet’s son now has to move to Europe. A family has been forced to separate. Though Janet is glad his son found someone, Janet has said, ‘If you want to make a mother angry, give one of her children a right you deny the other. And if you want to break a mother’s heart, force one of her children to move far away from her in order to keep his household together.’”
Another story Medina told was that of Jesús and Ernesto, a Gay couple who came from Spain. “Jesús came in as a lawful immigrant and works in medicine, researching a cancer vaccine,” Medina said. “Ernesto emigrated on a student visa. Ernesto’s visa expired in 2011. Jesús is not allowed to sponsor Ernesto for lawful residency. Jesús will not abandon Ernesto, so they will be forced to leave the U.S. and leave the cancer research behind.”
Medina’s next story was about Allah Pitcherskaia, a Russian Lesbian “who fought for and won her case for asylum. In Russia she was subject to arrest, imprisonment and involuntary psychiatric ‘treatment,’ including electroshock therapy, to ‘cure’ her of her homosexuality. She was denied asylum at first when the court ruled that, although she had been subjected to involuntary psychiatric treatment by the Russian authorities, they intended to ‘cure’ her, not punish her. Allah won her appeal, and on that appeal the court then found that even if the abuser does not intend to harm the victim, if the victim experiences the abuse as harm, this can rise to the level” of the “well-founded fear of persecution” that is the legal requirement for asylum.
“We have a Transgender born Luis Reyes Reyes, who goes by the names Linda, Josephine and Cukita, who escaped from a terrible situation in El Salvador and crossed into the U.S. without papers 25 years ago,” Medina also said. “When her ‘illegal’ status was discovered in 2002, she was set to be deported back then, but she filed for asylum. During her proceedings it was discovered that Reyes Reyes had been kidnapped, beaten and raped by a group of men because of her sexual orientation. She was threatened by these men with more brutalities if she told anyone. Asylum was at first denied, but Reyes Reyes fought back and appealed. The court has remanded the case for further proceedings, and while it reviews the case, Reyes Reyes is currently in custody and separated from other prisoners ‘for her own protection.’”
Medina’s final story was of a Japanese immigrant, Takado Ueda, and her American spouse, Frances Herbert. “They are a bi-national couple who have been together for more than a decade, and were legally married in Vermont last year,” Medina explained. “But because the federal government does not recognize same-sex marriage, they don’t have spousal status for immigration purposes. Ueda’s student visa had expired. She too had become ‘illegal.’ In the summer of 2011 Ueda received a letter ordering her to leave the country by December 31. She did not comply, and for months they lived in uncertainty, but they fought back and filed a lawsuit to stay together. Immigration officials have now granted them a two-year reprieve to review the case, and this allows them to work and for Ueda to apply for a Vermont driver’s license.”
According to Medina, all the stories he told, except for the two asylum seekers, centered around the 1996 Defense of Marriage Act (DoMA), passed by a Republican-majority Congress and signed into law by Democratic President Bill Clinton, which prevents the federal government from legally recognizing same-sex marriages and allows states to refuse to recognize same-sex marriages from other U.S. states or foreign countries. Medina praised the Obama administration for refusing to defend the constitutionality of DoMA in court and for offering special programs for some immigrants who were brought here “illegally” by their parents. But he criticized Obama for having failed to achieve humane immigration reform and for having deported more people than any other President over the same amount of time. “Love sees no borders,” Medina said. “All justice is one. No human is ‘illegal.’ No love is ‘illegal.’”
Deferred Action for Childhood Arrivals (DACA)
“People have the fundamental right to create families, and people have the fundamental right to be with their families,” said veteran immigration attorney Ginger Jacobs, the principal speaker at the September 29 S.A.M.E./Centro program. “What we’re talking about here are human rights, and so it doesn’t matter if you meet the L, the G, the B, T, I, ally or whatever. We’re all here to talk about the same thing.” That’s why she spent the first half of her presentation talking not about Queer-specific immigration issues but about DACA (Deferred Action for Childhood Arrivals), the elaborate program instituted by the Obama administration to prevent people who were brought to the U.S. as children by undocumented immigrant parents from being deported.
DACA had its roots in the administration’s announcement that it would use “prosecutorial discretion” in determining which undocumented immigrants would be targeted for deportation. The idea was to focus on deporting undocumented immigrants who had also committed crimes, joined gangs or already been deported several times before. Unable to get Congress to consider the DREAM Act — which would have allowed children of undocumented immigrants who were attending college or serving in the U.S. military to stay long-term — Obama decided to implement it administratively with the cumbersome DACA program.
“There’s a lot of misleading information about it,” Jacobs said of DACA. “Young people should be optimistic but careful, because there are some people who could be hurt by it just as there are many people who could be benefited. … They put a lot of constraints on it, but the idea is if you study hard, do what your parents say and go to college, you get a temporary two-year reprieve from deportation that allows you permission to work. You also get a Social Security number, which allows you to obtain a business license and a professional license.”
Jacobs said DACA was modeled on previous programs that allowed victims of domestic violence, violent crime, or natural disasters like Hurricane Katrina to stay in the U.S. and work. “It’s already in the law, and it’s up to the executive branch to use,” she explained. “It is not the DREAM Act. It does not provide a path to citizenship. The fight for immigration reform continues. We still need the DREAM Act so these people can become naturalized citizens. These young people are citizens in all but name,” she added — a reference to the fact that most of them have grown up thinking of themselves as Americans, swearing allegiance to the U.S. and no other country, and often speaking only English and not the language of their actual country of origin.
One of the hurdles in applying for DACA is the length of the list of qualifications and the elaborate documentation needed to back up an application. “The young person must have entered the U.S. before their 16th birthday,” Jacobs explained. “They must have been physically present in the U.S. on June 15, 2012 [when DACA was announced] without status, so if you had a student or tourist visa you won’t qualify. You have to be under 31 years of age as of June 15, 2012. You need to have resided continuously in the U.S. since June 15, 2007 — no deportations or extended visits to another country. At the time of application you must be in school, have graduated, earned a GED or be an honorably discharged veteran — which is actually more generous than the standard in the DREAM Act. Some young people have actually re-enrolled in school in order to qualify.”
Among the other qualifications for DACA are that the applicant must not have been convicted of a felony, a so-called “significant misdemeanor” — a term Jacobs says has never been used in immigration law before — or three “minor misdemeanors.” Driving without a license doesn’t qualify but driving while intoxicated (DUI) is a “significant misdemeanor” within DACA. Other “significant misdemeanors” include domestic violence, sexual abuse or exploitation, drug distribution or trafficking, or unlawful possession or use of a firearm. Also, the immigrant must be at least 15 when they apply. Jacobs estimates that 1.5 to 1.7 million of the estimated 10 to 12 million undocumented immigrants currently in the U.S. meet the DACA qualifications.
Jacobs got a wide range of audience questions about DACA, including one that’s also been reported in the Los Angeles Times: will the information filed in a DACA application be used by the government to deport the applicant’s parents? No, Jacobs said. “It does not require your parents’ names be on the form, and if the parents are contacted, as long as they don’t have a criminal background or a history of immigration violations, it’s unlikely they’ll go after their parents.” She also noted that, unlike DACA, virtually all other immigration applications — including ones for green cards — require you to name your parents on the forms.
Another persistent question was what will happen to DACA if Mitt Romney defeats President Obama in the November 6 election. Jacobs said that new Presidents usually don’t act immediately to undo the work of previous ones. “It will be in place for two years because Immigrations and Customs Enforcement (ICE) and all the Department of Homeland Security (DHS) agencies have said, ‘We don’t trash programs just because there’s a change of Presidents,’” Jacobs said. Since September 29, Romney’s campaign has put out conflicting signals about DACA: Romney himself said he would leave it in place, but afterwards a member of his staff said they would process existing DACA applications but not allow new ones.
One questioner asked why only 29 people were given two-year visas under DACA between June 15 and September 29, and whether the administration was going slowly because of the upcoming election. No, said Jacobs: immigration proceedings just take that long generally. “Three months is ‘lightning-fast’ by immigration standards,” she explained. “I can’t believe that 29 applications have already been approved, given that it’s only been six weeks. One hundred thousand people have applied and 63,000 have passed through their initial processing and been told they should be ruled on ‘soon.’”
Jacobs talked about the arduous process of applying for DACA. “Everyone will be fingerprinted,” she said. “Any previous applications for immigration benefits will be examined, including asylum or marriage fraud. They will need to establish identity through a passport, a consular ID, a birth certificate or a school ID with a photo. School districts have been overwhelmed with requests,” Jacobs added, saying that vaccination records and school records have been particularly useful to prospective DACA applicants showing they meet the qualifications. DACA applicants will also need to be ready for an in-person interview.
Another requirement — physical presence in the U.S. on June 15, 2012 — can be established, Jacobs said, by “school records, employment records, bank records, utility bills.” Some applicants, she explained, have scoured their papers looking for old ATM receipts to prove they took money out of a bank account on June 15 and were therefore in the U.S. She said that people who otherwise qualify for DACA could be in trouble if they left the U.S. for an extended period in the last five years because “there’s going to be a serious question about how you got back in, including a false claim of citizenship.” Indeed, one of the principal benefits of DACA is that once you get the two-year visa you can leave the U.S. and come back — something no immigration law or policy has granted since the Reagan-era amnesty of the 1980’s.
Jacobs concluded her presentation on DACA with a warning to avoid immigration scammers. “‘Notaries’ and immigration ‘consultants’ advertise all over the place in Latino publications,” she said. “I have seen so many people robbed of tens of thousands of dollars and had their cases prejudiced severely by what these people have done to them. Please spread the word. The wrong kind of ‘help’ can hurt. Many people have done time for immigration fraud. It’s really scary.” Jacobs said the best place to go to find out what the DACA requirements are is the government itself; the forms required (I-821D, I-765 and I-765ws) are available at www.uscis.com.
According to Jacobs, if you need legal help on immigration issues you should only hire an attorney who’s a member of the American Immigration Lawyers’ Association, which you can check out at www.aila.org. She also recommended the Dreamers’ Assistance Network site at www.dreamerassistance.org, and her own law firm’s site is www.jsslegal.com. Another site, the San Diego Immigration Rights Consortium, at www.immigrantsandiego.org, linis to the Dreamers’ Assistance Network and also focuses on fighting the abuse of immigrants. Jacobs’ associate, Antoniette Gonzales, said that the National Center for Lesbian Rights is offering programs to help Queer DACA applicants at www.nclrights.org.
Queers, Marriage and Immigration
Jacobs also talked about the rights of Queer people — especially bi-national Queer couples — under U.S. immigration law. Though her speech took place over two weeks before the U.S. Second Circuit Court of Appeals ruled Section 3 of the federal Defense of Marriage Act (DoMA) unconstitutional — in a sweeping decision that held that Queers are a “suspect class” and therefore laws that target them should be subject to the same “heightened scrutiny” as laws that discriminate on the basis of gender — she devoted much of her talk to an optimistic vision of a “DoMA-free world” in which U.S. citizens involved in relationships with same-gender partners from other countries could not only legally marry their partners but sponsor them for immigration purposes on the same basis as heterosexuals can sponsor their spouses.
“A post-DoMA world will only benefit couples who are legally married in states that have marriage equality,” Jacobs said. “Domestic partnership is not enough. I think we’re going to be looking at a lot of people going out of state to get married. If you live in a non-marriage equality state like Texas, marry in a marriage equality state and live in west Texas, they are still under federal jurisdiction, so your marriage must be recognized” if DoMA falls. Actually that may not happen; the two major provisions of DoMA are the federal definition of marriage as between one man and one woman, and the statement that states are not legally obligated to recognize same-sex marriages performed in other states. The Second Circuit ruling only addressed the federal definition of marriage, and left the part of DoMA that says states don’t have to recognize other states’ same-sex marriages in place. But Jacobs says that for immigration, at least, if DoMA falls the federal government would have to let you sponsor your non-citizen same-gender spouse for immigration if you so chose.
“What do we advise clients now?” Jacobs said. “If you’re someone who has to maintain ‘non-immigrant’ intent” — immigration-speak for being on a tourist, student or temporary work visa based on the assumption that you’ll return to your home country when it expires — “you may end up prejudicing yourself by marrying right now. If your non-citizen partner has no status at all, or if they have a work permit or visa that has ‘dual intent,’ you’re not prejudicing yourselves by getting married now, and if your partner has no status at all, marriage could help.”
According to Jacobs, even the federal Bureau of Immigration Appeals (BIA), www.justice.gov/eoir/biainfo.htm, is preparing for a DoMA-free future. Instead of automatically rejecting applicants seeking to sponsor same-sex partners, the BIA, said Jacobs, is “asking that the cases be ‘shelved’ and doing interviews and background checks” as they would to make sure an opposite-sex couple had a bona fide relationship and weren’t attempting marriage fraud. “The government is in the background preparing for DoMA to fall,” Jacobs said. She added that this is having a dramatic effect on what she tells clients with foreign-born same-sex partners: “Before, we had to say either, ‘No, I’m so sorry,’ or, ‘Can we do this through work?,” or, ‘Are Gays persecuted in your partner’s country of origin?’ Now we’re having the ‘Maybe you can get married’ talk.”
The audience questions Jacobs got during the presentation on Queers and immigration were quite a bit more impassioned and heartfelt than the ones she’d got about DACA — and her answers revealed that at least some U.S. immigration law has the bizarre, irrational quality of Franz Kafka’s The Trial or Joseph Heller’s Catch-22. Referring to the story Medina had told of the Gay couple from Spain, one of whom had a work visa to research a cancer vaccine and the other had a student visa — and they ended up moving back to Spain because they couldn’t legally remain in the U.S. — Jacobs said that under certain circumstances a person with a work visa can sponsor someone but a person with a green card cannot.
A woman in the audience who’s in a relationship with a non-citizen female partner asked if they get married legally, can her partner leave the country and re-enter without prejudicing her immigration case. No, Jacobs said, because a marriage establishes “immigrant intent” and could therefore backfire by being grounds for canceling her partner’s visa. “It’s always a risk if you have a U.S. citizen and a non-citizen spouse and you have them coming and going,” Jacobs said.
Another woman whose girlfriend is serving in the army of her home country asked if her partner could get in by joining the U.S. military. Once again Jacobs said no; you usually have to be a legal permanent resident before you can join (which is one reason she doesn’t expect many DACA applicants to come from the military instead of college), though for a time the Bush administration set that aside and offered foreign-born people legal residency and a promise of eventual citizenship if they enlisted.
Yet another questioner asked what would happen if a person involved in a same-sex relationship with a U.S. citizen already has an immigration case pending through a brother or sister. Would they still have to return to their home country? It depends on when the case was filed, Jacobs said. If it was before April 30, 2001, they can stay and do the case from inside the U.S. After that, they would not be able to pursue the case from the U.S. unless they’ve had continuous visa status. But marriage, she explained, would not negate the family petition unless they were marrying another foreign national who already had a green card.
Asked if a Queer person applying under family unification would have to deal with prejudice from the ICE agents handling their case, Jacobs said usually not. “If the hypothetical alien petitions through their brother or sister, gender, marital status or sexual orientation doesn’t matter,” she explained. “But if it’s done through a legal-resident parent, marriage cancels the right to petition from your parents, because the concept is that once you get married you’re no longer part of your parents’ family.” Jacobs also warned that the ICE designates certain countries as “high-fraud” and will look especially closely at any marriage-related application, opposite-sex or same-sex, involving a person from a “high-fraud country.”
Jacobs also talked about other options, including the so-called “U-visa,” which was designed to protect people who witnessed criminal activity from being deported but has increasingly been used to protect foreign-born victims of domestic violence from their U.S. citizen abusers. She discussed asylum, which is a sort of last-ditch effort to protect people who have, in the words of the law, a “well-founded fear of persecution” in their countries of origin. The U.S. government has recognized being Queer as a characteristic that can be the basis for a “well-founded fear of persecution,” especially in countries like Uganda or Iran where being Queer is a crime punishable either by life imprisonment or death.
But she said her firm has won asylum cases even with people from Mexico — especially Transgender people — despite the law allowing same-sex marriage in Mexico City. The problem with such cases — as well as cases of people in the western interior region of Brazil — is, as Jacobs explained, that “you have to show internal relocation is not possible. If you have the option of moving to a part of the country where you would be accepted, you won’t be approved for asylum.” Jacobs also got an asylum question about what happens if you’re from a country that technically has an anti-Queer law on the books but it’s rarely if ever enforced by the government. She answered that if you can show a risk of persecution from mobs or other “non-government actors,” you may still be able to win asylum.
“The law says you should not have to hide the fact that you’re Gay,” Jacobs said. “The law says that you have to have a characteristic that you cannot change or should not be required to change. The law says you have to show an objective risk. If the U.S. State Department says Gays are persecuted in your country of origin, it’s a good case. If the U.S. State Department says Gays are not persecuted there, it will be difficult. But it has to work on a case-by-case basis. You can never say, ‘This country, yes. That country, no.’”