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Civil Rights Groups Want to See Affirmative Relief for Undocumented LGBTQ Immigrants

Proposed affirmative relief must include LGBTQ community

MALDEF and twelve other LGBTQ, Latino, and Asian American advocacy and civil rights organizations recently sent a letter to President Obama, urging him to ensure that any affirmative relief for undocumented immigrants does not unfairly exclude members of the LGBTQ community. The letter comes in response to ongoing discussion surrounding the President’s announcement that his Administration is exploring avenues to provide affirmative relief to many of the undocumented in light of congressional inaction.

“Even as our country makes great strides in eliminating discrimination against the LGBTQ community in laws governing marriage and family, our policies must recognize the ongoing effects of such discrimination where it continues and where it has only recently been removed,” stated Thomas A. Saenz, MALDEF President and General Counsel. “In implementing appropriate affirmative relief, the Administration must not allow the inexcusable inaction of the Congress to result in leaving any contributing immigrant behind.”

Specifically, the letter urges the President to take two actions that would represent significant strides in alleviating the threat of deportation for over 267,000 undocumented LGBTQ individuals currently in the country: provide affirmative relief for individuals who have long-term residency in the United States but may not have state-recognized familial relationships with citizens, lawful permanent residents (LPR), or Deferred Action for Childhood Arrivals (DACA) holders; and promulgate flexible criminal background requirements in light of the high conviction rates of undocumented LGBTQ immigrants for “survival crimes.”

The letter expands on the ways in which the LGBTQ population would be disproportionately excluded by requirements to have qualifying relatives or by overly stringent criminal ineligibility standards. Many LGBTQ individuals reside in states that do not recognize same-sex marriage or that maintain formal or informal barriers to LGBTQ adoption, and whose family ties are considered “legal strangers” in many states. Even in states that are eliminating longstanding discrimination in marriage and family laws, the recency of these developments have made it significantly more difficult for undocumented LGBTQ immigrants to have accumulated family ties since their arrival in the United States.

Criminal ineligibility standards must be flexible because of the unique circumstances of many in the LGBTQ community. Survival crimes, sometimes related to sex work or homelessness, can result in convictions and felonies. According to the National Transgender Discrimination Survey (NTDS), eleven percent of transgender individuals report participating in sex work, which is significantly higher than the one percent for all women in the United States. Participation in the street economy stems from persecution, abuse, and lack of job opportunities and stable housing.

“While providing affirmative relief to undocumented immigrants with family ties is commendable, applying this approach exclusively would disproportionately exclude the over 267,000 undocumented LGBTQ immigrants in the country who are less able to establish those qualifying relationships. Inclusive affirmative relief is particularly critical for LGBTQ immigrants, who often face systemic abuse while in immigration detention, including excessive solitary confinement, repeated sexual assault, and inadequate medical care,” said Jose Magaña-Salgado, MALDEF Legislative Staff Attorney.

The following organizations joined MALDEF as signatories on the letter:
Asian Americans Advancing Justice
Immigration Equality
Familia: Trans Queer Liberation Movement
Lambda Legal
League of United Latin American Citizens
National Center for Lesbian Rights
National Center for Transgender Equality
National Gay and Lesbian Task Force
National Latina Institute for Reproductive Health
National Latino GLBT History Project
National Queer Asian Pacific Islander Alliance