Homosexual activists, seeking acceptance in society, are pressuring governments around the world for such rights as marriage, immigration sponsorship of same-sex partners, and asylum on the grounds of persecution as members of a distinct social group. In fact, they have succeeded at securing a number of these sorts of official recognition and approval. Supporters view these new policies as societal progress. Opponents view them as postmodern societal decline. A look at the situation shows:.
The United States and 13 other countries grant homosexuals political asylum because of fear of persecution in their home nation on the basis of membership in a "particular social group," in this case homosexuals.
Immigration sponsorship of one's same-sex partner, on equal basis with married, opposite-sex couples is allowed in 10 countries.
No country yet allows homosexual marriage, although several grant official recognition of "domestic partnerships." The parliament of the
Netherlands has passed legislation calling for homosexual marriage.
The United States bans federal recognition of homosexual marriage through the 1996 Defense of Marriage Act, which precludes spousal immigration sponsorship of homosexual partners, even if they were to gain official marital status in another country in the future.
The 1990 Immigration Act removed homosexuality as a ground for exclusion from immigrating to the United States.
Several United Nations organizations are vigorously pushing for official recognition of homosexuals, with clear immigration-related implications, including expanding the definition of human rights to include homosexuals.
For at least a decade, homosexual advocacy groups have made immigration one of the fronts on which they fight for their agenda. The public relations battles they wage use the strategy of reshaping society to recognize same-sex relationships, adopting the rhetoric of the civil rights movement, and the tactic of alleging discrimination equivalent to that against blacks under Jim Crow laws or apartheid.
Exclusion Until fairly recently, most societies, cultures, legal systems, and the world's leading religions have viewed homosexuality as aberrant behavior. It comes as no surprise, then, that until only the most recent times, homosexuality has been grounds for exclusion of a prospective immigrant in most nations.
Exclusion is the prevention from entry of someone actually outside the United States or who is treated as being outside the United States for purposes of certain provisions of immigration law. The Immigration and Nationality Act was amended in 1965 to specifically exclude from receiving a visa and from admission into the United States "[a]liens afflicted with . . . sexual deviation . . ." (INA Sec. 212(a)(4)). This was considered to include homosexuals.In practice, however, this was rarely enforced. In fact, around 1979, the U.S. Public Health Service (the source for regulations involving health issues) said it would no longer certify homosexuality as a disease, thus ending the practice of denying visas to homosexuals who are not otherwise excludable on health, criminal, security, or other grounds. Revisions in the 1990 Immigration Act formalized the change.
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Fourteen countries have granted homosexuals political asylum as members of "a particular social group" (see below). The United Nations High Commissioner for Refugees has decreed that its policy now is to consider homosexuals persecuted for their sexual orientation as "refugees."
The first U.S. case of asylum being granted based on a claim of persecution of homosexuality came in 1989. Fidel Armando Toboso-Alfonso, a Cuban, claimed persecution because of membership in a social group, homosexuals. A U.S. immigration judge granted him asylum on that basis and the Board of Immigration Appeals upheld the decision in 1990.
In 1994, Attorney General Janet Reno cited that decision as a legal precedent (see below). Thus, homosexuals seeking asylum because of alleged persecution or fear of persecution on account of their homosexuality were to be considered members of a particular social group under the laws governing asylum determinations. The attorney general's determination has bound immigration and asylum officials to follow this precedent.
Once in a country, aliens may be deported for any number of reasons. These reasons may include overstaying the terms of a temporary visa, committing a crime, or becoming dependent upon government welfare programs for a prolonged period (that is, becoming a public charge). In certain cases, those ordered deported may be allowed to appeal the decision and have the deportation order suspended. Suspension of deportation usually requires the alien to show that his or her removal would cause the alien or a resident family member "extreme hardship."
The 1990 removal of homosexuality as grounds for exclusion from U.S. immigration law helped open up the opportunity in the United States for homosexuals ordered deported to appeal on the basis of a same-sex relationship. While U.S. law specifies hardship on one's "spouse, parent, or child," (INA Sec. 244(a)), some immigration judges now read homosexual relationships as the legal equivalent of "spouse." Such relationships, though lacking the necessary blood or marital connection, now pass for grounds for suspending a deportation order, entitling a homosexual immigrant the privilege of remaining in the United States..
According to the Lesbian and Gay Immigration Rights Task Force, "The anecdotal evidence suggests that judges are willing to find that separation of a gay or lesbian couple constitutes extreme hardship and will grant gays or lesbians suspension of deportation, if they can prove that they would endure this hardship if deported" (emphasis in original). .
The task force cites a Mexican lesbian who gained suspension of deportation from a Los Angeles immigration judge and a gay Filipino-Chinese man granted suspension by a San Francisco immigration judge. Both deportees argued extreme hardship should they be separated from their U.S. partners. In the latter case, the man and his U.S. citizen partner had registered with the San Francisco Marriage Recorder's Office in May 1996 as "domestic partners.".
The legal counterpart to suspension of deportation has gained same-sex couples in the United Kingdom the possibility of beating a deportation order on the grounds of their relationship. The British activist Stonewall Immigration Group said it won 16 cases for homosexuals as of Fall 1996. In a case decided in August 1996, a Moroccan man won a reversal of an order of deportation on the basis of his 13-year relationship with a British citizen. The Immigration Appeals Adjudicator reversed the order, finding "a stable homosexual relationship" and "compassionate grounds within the provisions of [the law]" to do so.
The movement toward official recognition of homosexual relationships continues beyond allowing family sponsorship based on de facto same-sex relationships between two persons. An Argentine court last year ruled that the same social benefits, such as welfare payments and a pension following a partner's death, extend to a homosexual couple in the same "evident, stable, and permanent" living arrangement as a legally married or common-law heterosexual couple. This decision marked that country's first official recognition of this sort of relationship. The continuation of that kind of policy may be expected to lead eventually to immigration sponsorship benefits for homosexuals there..
Another form of official recognition that does not yet extend immigration rights is the "registered partnership." Six countries provide official status for same-sex couples within their nations: Denmark, Greenland, Iceland, the Netherlands, Norway, and Sweden. Because registered partnerships are not legally equal to marriage and are not recognized by other countries, this status does not gain a couple immigration rights. In 1989, Denmark enacted a Registered Partnership Act, which provides most of the rights and responsibilities of marriage, but with certain exceptions. The law requires that at least one partner be a Danish national..
While registered partnerships do not receive recognition outside each country that allows such arrangements, Denmark extended its registered partnership law to apply in Greenland. Similarly, Denmark, Norway, and Sweden agreed in 1995 to a treaty that granted reciprocity of recognition of these partnerships. It bears noting that Sweden, which already had a domestic partnership provision to accommodate cohabiting heterosexuals, enacted its registered partnership law specifically for homosexual couples.