On the 50th Anniversary of the Immigration and Nationality Act, Changes Are Needed to Protect LGBT Immigrants

Ugandan gay rights activist John Abdallah Wambere, right, embraces attorney Janson Wu at the end of a news conference on May 6, 2014, in Boston. Wambere is seeking asylum in the United States to escape persecution in his home country.

This year marks the 50th anniversary of the passage of the Immigration and Nationality Act, or INA, which ushered in the birth of America’s current legal immigration system. The INA represented a sea change in U.S. immigration policy; it abolished the racially based quota system that defined American immigration policy for four decades and replaced it with a policy whose central purpose was family reunification, with a preference for immigrants with specific skillsets. In the words of former President Lyndon B. Johnson, the INA’s passage “correct[ed] a cruel and enduring wrong in the conduct of the American Nation.”

Yet while the INA represented a fairer approach to immigration, it also created new restrictions on admissibility, specifically for lesbian, gay, bisexual, and transgender, or LGBT, people. The INA replaced the exclusion for immigrants possessing a so-called psychopathic personality with a ban on “sexual deviation,” a catch-all to exclude LGBT people from entering the United States. Although the American Psychiatric Association removed homosexuality from its list of medical conditions in 1973, the INA entry restriction remained in place until “sexual deviation” was removed by the Immigration Act of 1990.

Despite this reform, however, there still remained many restrictions on LGBT immigrants who wished to lawfully enter and remain in the United States. Many LGBT immigrants were still denied admission to the United States, since the ban on people with HIV entering the country was not lifted until 2010. And even though the United States has recognized persecution on the basis of sexual orientation as grounds for asylum since 1994, Congress passed the Defense of Marriage Act, or DOMA, in 1996, which discriminated against same-sex married couples by denying them access to marriage-based federal benefits, including sponsorship of a spouse for an immigrant visa. It was not until 2013—when the Supreme Court found Section 3 of DOMA unconstitutional—that married binational same-sex couples received equal treatment under U.S. immigration law and could live without fear of being separated by deportation.

Although we have seen great progress in the 50 years since the INA was passed, additional measures are needed in order to ensure that LGBT immigrants are not disproportionately disadvantaged in attempting to access the legal immigration system. As an LGBT rights advocate and transgender man who faced persecution in Uganda, Victor Mukasa has firsthand experience with the ways in which the U.S. immigration system fails to meet the needs of LGBT immigrants. Mukasa, founding director of Sexual Minorities Uganda, or SMUG, and current executive director of the Kuchu Diaspora Alliance-USA, or KDA-USA, came to the United States in 2012 seeking protection from abuse and persecution. He was one of the most famous LGBT activists in his home country of Uganda, where advocating for such reform can be a death sentence—as it was for his friend and colleague David Kato. In an interview with the author, Mukasa shared his views on the remaining challenges that the U.S. immigration system poses for LGBT people, particularly those seeking protection in the United States from persecution in their home countries.

Legal representation

While Mukasa, who won his asylum case, was fortunate enough to be represented pro bono by Immigration Equality—the largest organization providing free legal services to LGBT people seeking protection in the United States—there is currently no right to appointed counsel in immigration cases. A study showed that people represented by a lawyer are 500 percent more likely to win their immigration cases than those without a lawyer. For LGBT asylum seekers who risk deportation to unsafe countries if they lose, having a lawyer can be the difference between life and death. The discrimination these immigrants faced in their home countries also makes it unlikely that they will be able to afford a lawyer, and there are not enough pro bono immigration lawyers to meet current demand. LGBT asylum seekers are also endangered when they are detained for seeking protection in the United States. Not only are LGBT people in detention at increased risk of physical and sexual violence, but detention also severely decreases their ability to win asylum, with only 3 percent of detained and unrepresented immigrants winning their immigration cases.

Support for asylum seekers

There are two ways for people facing persecution to access U.S. protection: apply to be resettled as a refugee abroad or request asylum after entering the United States. While additional support is needed, and the resettlement process needs to be reformed in order to ensure that LGBT refugees are identified and resettled in cities with the capacity to meet their particular needs, people who are resettled in the United States through the refugee system are eligible for certain services and financial assistance to help in transitioning to their new lives. But as Mukasa describes it, no such support exists for asylum seekers:

When you come here for safety, you already lost dignity at home, and the little that was left you lose during the asylum process. You went from being a provider to becoming a beggar. When I left home, I did not have time to sell my things and come with enough money. I came with just one suitcase. You have to stay in churches, in people’s living rooms. You aren’t able to work. This whole process makes you lose your dignity. It’s like you’re being punished for fleeing for your life, even though doing so is a right recognized by law.

Family recognition

Unlike some other statutes, the INA does not define a spouse as either a husband or a wife, so the repeal of DOMA allowed for the recognition of same-sex married couples for immigration purposes without further amendments. Unfortunately, the INA’s focus on legally recognized family ties and definitions regarding parent-child relationships exclude LGBT families whose relationships were not recognized in their home countries. For Mukasa, this has had a tragic impact on his family, whom he has not seen in more than two years. Although asylum seekers can add their immediate relatives to their asylum applications and petition to bring their spouses and children to join them when they are granted asylum, his family is not recognized under Ugandan law. As a result, the United States does not legally recognize his family either. Describing his situation, Mukasa said, “Homophobia separated me from my family, but so has the immigration system that has made it difficult for me to reunite with my family, just because of a document. Even though I can prove in other ways I have loved them as a dad.”

What needs to be done

While America has seen many improvements to its immigration system since the INA eliminated the quota system, further reforms are needed to make it truly inclusive. The problems that Victor Mukasa experienced firsthand that make our immigration system inaccessible to LGBT people need to be addressed. The United States must also confront the issues that the bipartisan immigration reform bill passed by the Senate in 2013 sought to solve, such as creating a pathway to citizenship that would help the estimated 267,000 LGBT undocumented immigrants living in America and eliminating the arbitrary one-year filing deadline that prevents many eligible asylum seekers, particularly LGBT people, from accessing protection. Remedying these problems will create a fairer immigration system, not just for Mukasa and his family but also for thousands of LGBT immigrants and their families, who are looking to the United States for safety and equal treatment under the law.

Sharita Gruberg is the Senior Policy Analyst for the LGBT Research and Communications Project at the Center for American Progress.