Through established asylum and refugee laws, the United States offers protection to individuals who have been persecuted or who have a well-founded fear of persecution based on their sexual orientation, gender identity or because they are perceived to be part of those communities. It is clearly documented by the Department of State (DOS) that over 70 countries around the world actively criminalize homosexuality and target lesbian, gay, bisexual or transgender (LGBT) persons with hate and life-threatening violence. Just last year Russia passed new laws to criminalize homosexual “propaganda” and the India Supreme Court recriminalized homosexuality, overturning a lower court’s previous decriminalization decision. Multiple Middle Eastern countries continue to impose severe jail and death sentences in condemnation against LGBT individuals or those perceived as such.
By the very nature of these regressive laws, being lesbian, gay, bisexual or transgender is held illegal and immoral. There is no concept of equal treatment under the law in these homophobic countries nor any legal recognition whatsoever of same-sex relationships. Herein lies the conundrum for partners of LGBT asylees: only legally-married spouses are able to follow-to-join an asylum grantee to the United States. While same-sex marriage in the United States is now legally recognized for immigration benefits thanks to the June 2013 Windsor case, LGBT individuals who flee their home countries may leave behind a same-sex partner who cannot become a spouse, as same-sex marriage is not legal in the asylee’s home country. Without a legal spousal relationship, the same-sex partner of an asylee does not qualify to follow-to-join under U.S. immigration law.
The above is the general rule, so one would assume that there must be an exception to protect these vulnerable minorities. Yet, there is no clear policy or easily-accessible path for same-sex partners of asylees. A fair process for these same-sex partners would be consistent with the Obama administration’s policy for equality on LGBT rights and immigration’s historical pro-family unity polices, former Secretary Clinton’s statements on International Human Rights Day in 2011 that “gay rights are human rights, and human rights are gay rights,” and the fact that the Department of State ostensibly allows a change in venue in LGBT immigrant visa processing when the safety of an LGBT applicant may be an issue.
The harsh reality, however, is that both DOS and the Department of Homeland Security (DHS), up until now, are ignoring the very urgent need of same-sex partners and are denying tourist visas and humanitarian parole in even the most compelling of cases. A policy change on this issue is needed from each agency that adjudicates cases involving LGBT applicants, including DOS and DHS. Until the United States addresses this issue, there are untold LGBT individuals who are subjected to the fear of harm or actual violence because of who they are. This hole in the law, while probably unintended, continues to do nothing more than support the forced separation of families.
The only current legal options that exist for same-sex partners of asylees are through either a tourist visa or humanitarian parole. A tourist visa through DOS would allow a same-sex partner to marry in the United States, facilitating the pursuit of an immigrant visa once the asylee becomes a permanent resident. Even then, no immediate immigrant visa would be available to the partner due to visa retrogression, further complicating the goal of family unification. However, anecdotal reports suggest that tourist visas to the United States are being denied citing INA § 214(b), which may be proper under the law but seemingly unfair under the circumstances.
Another viable option is for the same-sex partner to seek humanitarian parole through DHS. With § 214(b) in mind, this may be a more appropriate route. Yet, DHS has denied such requests by same-sex partners of asylees, closing the door of legal possibilities for those couples. Humanitarian parole, while discretionary, should be a suitable option in these cases, especially since the law limits the use of follow-to-join to married spouses, not partners, and tourist visas raise immigrant intent issues for the same-sex partners of asylees.
Finally, the President and DOS should make every effort to make the resettlement process easier for same-sex partners of asylees through the United States Refugee Admissions Program (USRAP). While most refugees need to be outside their country of origin to process, the President may authorize some individuals to process in their home countries.
If the United States truly believes there is a special humanitarian concern for LGBT individuals and their partners in countries that seek to persecute them, our government must step up to create and implement clear policies that provide a path forward. Only then will we actually protect LGBT individuals abroad by reuniting same-sex partners with their families in the United States.
Written by Michael R. Jarecki, AILA Chicago Chapter Treasurer and Member, AILA Media Advocacy Committee
 AILA InfoNet Doc. No. 14020741