One Year Later, LGBT Immigrants Are Still in Limbo

This blog post was co-authored by Carmina Ocampo, Lambda Legal Staff Attorney and Immigrants’ Rights Program Strategist, and Francisco Dueñas, Director of Diversity, Inclusion and Proyecto Igualdad.

Yesterday, Lambda Legal joined a coalition of civil rights, immigrants’ rights and labor organizations in a friend-of-the-court brief urging the Supreme Court to grant review of an appellate court ruling preventing implementation of President Obama’s executive actions expanding opportunities for certain undocumented immigrants. Dating back more than a year, these executive actions -- Deferred Action for Parents of Americans (DAPA) and Lawful Permanent Residents (LPR) and an expanded Deferred Action for Childhood Arrivals (DACA) -- granted work authorization and protection from deportation to millions of undocumented-immigrant parents of American citizens and lawful permanent residents and to undocumented immigrant youth who qualified. However, these initiatives never took effect because they were blocked by a Texas federal district court as a result of a lawsuit filed by Texas and twenty-five other states.

On November 20, 2015, after the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court injunction, the Obama administration filed a petition asking the Supreme Court to review the case so that ultimately President Obama's executive action to protect millions of undocumented immigrants from deportation can be revived. Yesterday’s amicus brief supports that petition for review.

A year ago when President Obama announced his new immigration plan, we praised it for granting protection from deportation for millions of undocumented immigrants, positively affecting thousands of LGBT immigrants. According to the Center for American Progress (see here), in 2014 at least 587, 000 undocumented young people received both relief from deportation and work permits as a result of the original DACA program, and about 10 percent of DACA recipients surveyed also identified as LGBT. Had it been allowed to go into effect, thousands more LGBT young people would have qualified under the expanded DACA program. At that time, however, we also expressed deep disappointment that the President’s immigration plan unfairly excluded many members of the LGBT community, especially transgender immigrants, because of its requirement that individuals seeking DAPA relief have children. Requiring individuals to have children disproportionately excludes LGBT immigrants who are childless by choice or because the barriers to creating a family are higher for people who cannot afford assisted reproduction or were disqualified from adoption by antigay laws.

Although disappointed in the limits of the expanded DAPA and DACA programs, we acknowledged that they were important and necessary steps to keep families together and immigrant communities whole and allow undocumented immigrants to live and work in this country with dignity and without fear of being deported. It is sad and troubling that even these limited initiatives taken by the Obama administration have been halted and tied up by the actions of hostile states.

Along with defending the President’s immigration initiatives, there is still much more that needs to be done to advance, protect and defend the human rights of immigrants in this country. Pew Research (see here) said there were at least 11.3 million undocumented immigrants in 2014. According to the Williams Institute, there are an estimated 267,000 undocumented LGBT adults living in the United States. (See here). 71 percent of undocumented LGBT adults are Latino and 15 percent are Asian or Pacific Islander. Millions of undocumented immigrants, including thousands of LGBT immigrants -many who have fled countries where LGBT people are unprotected and subjected to violence- currently live in fear of deportation and detention. Immigrant communities have been demanding an end to criminalization, deportation, and detention and have been calling for humane immigration reform for years.

The National Day Labor Organizing Network, a grassroots organization which mobilizes and empowers undocumented immigrants to fight for change issued a statement on the anniversary of the President’s Executive Actions saying, “We still demand the right to live and work without fear in the communities we call home.” NDLON’s statement also noted that the anniversary of the President’s announcement coincides with National Transgender Day of Remembrance, which was a thoughtful acknowledgement of the intersections of the LGBT and immigrants’ rights movements. It’s important that that the LGBT community keep organizing and pushing for equality, justice and respect for immigrants.