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    September 06, 2007

    Obama and gay immigration rights

    Posted by: Chris

    Barack_obama_bbc Score another blow for readers of this blog. First there was Christopher Hubble, who reacted to a complimentary post I'd written about Bill Richardson by dredging up his "maricón moment" on the Don Imus show a year earlier. That resulted in a story on Gay News Watch that was a first important hint that the New Mexico governor's record on gay rights was more impressive than his command of gay issues.

    Now Danielle Clark, a Barack Obama supporter, has done some sleuthing that sheds important light on her candidate's qualified support for gay couple immigration rights. She came across a couple of posts I wrote back in June about how both Obama and Clinton were hedging their support for the Uniting American Families Act, which would extend to gay Americans the same rights straight folks have to sponsor their spouses for citizenship.

    The Human Rights Campaign candidate "scorecard" showed both Obama and Clinton supporting immigration rights for binational couples even though neither had signed on to cosponsor UAFA. It turns out that both of them, in their more detailed responses to the HRC questionnaire, had raised concerns about the risk of fraud under UAFA as written. When I wrote a less-than-complimentary second post tracking Obama's evolution on the issue, in which he showed sympathy but not full-fledged support, Danielle had had enough.

    She fired off an email to the Obama campaign asking for clarification and got this, rather detailed reply:

    Danielle-

    Barack believes that LGBT Americans with partners from other countries should not be faced with a choice between staying with their partner and staying in their country. That's why he supports changing immigration policy through the Uniting American Families Act. He does, however, have some reservations about the fraud provisions of the present bill.

    Precisely because same-sex couples are not allowed to enter into civil unions, domestic partnerships, or other legally-recognized unions throughout the country, he believes we need to make sure that we have adequate safeguards against fraud.

    He wants to make sure that immigration is possible for a partner in committed relationships, but he also wants to make sure there is a good mechanism for determining who qualifies for that status. He would like to see the Act get more specific with regards to defining 'financial interdependence' and the documentation required as proof in order to establish relationships -- which could very well happen once the bill reaches the Senate floor.

    Hope this helps clarify.

    Alex

    Actually, Alex and Danielle, this does help clarify quite a bit. The Obama camp is right that merely extending immigration rights to gay Americans doesn't level the playing field because heterosexuals are required to marry (or at least be engaged) to the non-American to sponsor him/her for citizenship. As Alex rightly suggests, gay Americans can't enter into that level of commitment because few states have marriage or civil unions for gay couples, and the Defense of Marriage Act (signed by Mr. Hillary Clinton) blocks federal recognition of gay marriages anyway.

    So that makes the fraud provisions of UAFA that much more important. Even though it's unfair we can't marry, it is fair to require some additional level proof than just our say-so that we are in a committed, permanent relationship with the non-American we want to sponsor.

    As Alex/Obama also suggests, the UAFA strategy has been to add on fraud-prevention provisions in the horsetrading that would happen when the bill comes up for consideration. Adding them now, it's reasoned by Immigration Equality and other pro-UAFA groups, only means vulnerability to some other, more painful compromise when push time comes.

    It's a judgment call to be sure, but I see Obama's point here.  Why shouldn't UAFA be written in a form ready for passage, rather than holding off on provisions that ought to be there but aren't. Other countries that have dealt with this issue of how to test the legitimacy of unmarried couples, including Canada and the U.K., have required one year of cohabitation in addition to proof of financial codependence, etc. It's a draconian provision, as my own vagabond life has proven, but I can't say it's unreasonable.

    So kudos to Danielle and, I have to say, I'm once again impressed that Obama and the Obama camp don't pander and have substantive responses on the issues. Now it's Hillary's turn.

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    Listed below are links to weblogs that reference Obama and gay immigration rights:

    1. Obama and Clinton on UAFA - Having It Both Ways With The Gays from Queer Beacon on Sep 8, 2007 9:48:35 AM

      Immigration Equality and Citizen Crain, two blogs I like, are having a discussion on the lack of support for the United American Families Act (the bill that would allow gays to sponsor their partners for immigration purposes in the US) [Read More]

    Listed below are links to weblogs that reference Obama and gay immigration rights:

    1. Barack Obama on LGBT Immigration from Out For Democracy on Sep 10, 2007 1:27:55 PM

      Chris Crain has a great post up which clarifies Barack Obama's position on LGBT immigration, and specifically, the Uniting American Families Act. The Obama campaign reports: Barack believes that LGBT Americans with partners from other countries should ... [Read More]

    Comments

    1. Brian Miller on Sep 7, 2007 3:53:50 AM:

      Why aren't gay journalists and bloggers asking the obvious questions, such as:

      1) If Obama has "concerns about fraud," why doesn't he offer an amended version of the UAFA as written that addresses those questions? He is a Senator, last time I checked.

      2) Where are Clinton's (or Obama's) gay immigration equality bills?

      3) For that matter, why haven't they co-sponsored (or introduced Senate companion legislation) of bills for issues they claim to support?

      The reality of the situation is that talk is cheap, and both Obama and Clinton are all about talk. Until they back up their sleazy "compromises" with action, gay people should continue to focus on the actual issue at hand, which is that just like George W. Bush and Sam Brownback, Hillary and Obama oppose UAFA.

    1. Alex on Sep 7, 2007 11:16:01 AM:

      "Other countries that have dealt with this issue of how to test the legitimacy of unmarried couples, including Canada and the U.K., have required one year of cohabitation in addition to proof of financial codependence, etc."

      Canada also requires that an immigration sponsor (whether domestic partner or legal spouse) remain financially responsible for the immigrant for three years following the date of entry, even if the relationship ends. This alleviates somewhat the "Fraudsters r in ur country, eatin up ur benefits!" concerns.

    1. Citizen Crain on Sep 7, 2007 1:39:17 PM:

      Brian: I don't think the criticism of Obama and Clinton is fair. It's not in the interest of gay immigration rights to have multiple versions of the bill introduced by anyone with specific concerns. So long as they are raising specific concerns with UAFA's Senate sponsor and Immigration Equality, then it's incumbent on those in favor of UAFA to address the concerns or amend the bill, or put it back to Obama and Clinton that they need to decide based on how the measure reads today.

      Alex: The financial requirement is universal but is extremely rarely enforced, so it offers cold comfort to those with fraud concerns. It's much more effective to address those concerns than offer a backstop once fraud occurs.

    1. Brian Miller on Sep 7, 2007 8:29:25 PM:

      So to summarize your argument, Chris, you're willing to allow Clinton and Obama to vote against the bill (and campaign against it) while simultaneously claiming they support immigration rights -- and give them the benefit of the doubt in doing so.

      You might be willing to do this, but I daresay most gay people aren't.

      "as they are raising specific concerns with UAFA's Senate sponsor and Immigration Equality, then it's incumbent on those in favor of UAFA to address the concerns or amend the bill"

      No it's not. It's incumbent upon Clinton and Obama (and other fraudsters) to propose a path forward, or sign on to the bill as it stands. They want it both ways -- opposition based on a completely contrived "fraud" concern, with a claim that they "support" the immigration equality they're voting against.

      Incidentally, both Obama and Clinton were strong supporters of the failed amnesty bill that would have given 12 million illegal migrants in the United States legal residency and citizenship -- further laying bare the sheer absurdity of their phony opposition based on "immigration concerns."

      Assuming that 10% of gay applications were fraudulent, a few hundred gay marriage applications every year would be "illegals." Contrast that to the 12 million illegal immigrants that Clinton and Obama wanted amnesty for, and then tell me their concerns are about immigration fraud!

    1. Queer Beacon on Sep 8, 2007 9:21:07 AM:

      I agree with Brian. Talk is cheap, and both Obama and Clinton are trying to have it both ways. To use an ethereal fear of fraud as a basis to withhold support for UAFA is low (but -- unfortunately -- not surprising).

    1. The Scientist' View on Sep 9, 2007 12:15:14 PM:

      In the past, I never gave much thought to how one would prove that a gay couple has a legitimate relationship. However with a recent move to Iowa to get a very good job, I needed to change my health insurance for myself and my partner since he left his job when coming here and needs to find a new one - so he needed coverage.

      I found out that, while the company offers very generous benefits to the partner, one had to sign a document stating that the partner was "significant" and then had a range of metrics to set the bar at what is a "significant" relationship.

      This was old hat for me and I think that providing some documentation is not an onerous burden.

      But in an interesting spin, I then had to have my partner come to work with me and we had to go to a notary (at work) and both sign this piece of paper and then it was notarized. I had to, in essence, come out at work in front of my partner of 6 years and to some ugly middle age woman who was vaguely disgusted.

      I found it offensive - but I had no choice...my partner needs health care.

      This brings me around to Barrack's position - what mechanism will actually be implemented to "validate" a relastionship. All the metrics I encountered were economic or logistical - shared residence (need a lease or shared mortgage), shared bank account, previous joint coverage in benefits, and so on.

      This may work reasonably well in modern developed nations, but what happens when you are from a nation that might actually persecute you for being gay? How do you prove to the American government that your relationship is valid when the metrics the government wants to see would endanger you in your home country?

      While I am glad to hear that Barrack, in principle, supports gay immigration rights, I find his position lacking nuance.

      He really should try again from the standpoint of how it would affect him if he were, hypothetically, gay and Kenyan and trying to get to America.

      That is an answer I, and many others, would love to see because it would force him to confront how difficult it is to deal with the American government as a true minority.

    1. Stephen R. Maloney on Sep 10, 2007 2:07:21 PM:

      Today (Monday) on my blog I wrote a long -- and hard-hitting -- statement about the need for Republicans and Christians to welcome gays and lesbians and to support their efforts to gain equal treatment under the law. I apologize for the behavior of a segment of the evangelical community. I also mention your blog, along with many others. Comments are always welcome.

      steve maloney
      ambridge, PA
      http://camp2008victorya.blogspot.com

      I'll do another column tomorrow . . .

    1. Citizen Crain on Sep 11, 2007 2:01:18 AM:

      Queer Beacon: It's not enough to describe Obama's concern about fraud as "ethereal." Why is it so? It strikes me as legitimate, and I'm not aware of ANY country in the world that simply accepts a couple's word when it comes to sponsoring a foreign partner/spouse for citizenship. So it's a matter of the level of proof. What proof do you propose?

      The Scientist: I can appreciate the awkwardness of your work situation, but actually signing a piece of paper that has no legal significance or exposure is an incredibly easy step to getting what you describe as "generous benefits." I would ask you the same question as QB. What proof would you require of domestic partners?

    1. Lavi Soloway on Sep 14, 2007 2:27:34 AM:

      I do not agree with the premise of Obama's clarification. It is not appropriate to include in a statute a litany of types of evidence that would be considered/required to prove the bona fides of a relationship. At best, those details belong in the regulations promulgated by the agency (CIS), but in reality they are often reserved for specialists who issue internal policy memoranda, operating instructions, etc. This allows the various district offices or the agency as a whole to flexibly address issue that arise in adjudication of these cases. I appreciate what seems to be an effort by the Obama campaign to improve their position, but the "fraud" answer is still offensive to me as a red herring. I agree with those who wonder aloud why, if they otherwise support UAFA's goals they didn't offer constructive suggestions for amending it when they were asked to co-sponsor. (Senator Clinton never raised the fraud issue in all the years she was aked to co-sponsor. She simply stonewalled and dodged the issue.) I don't hear Clinton and Obama suggesting that the long list of evidence required by CIS of heterosexual married couples prior to "green card" interviews properly belongs in the statute. Congress empowers the agency to properly execute the law with its oversight. This power includes the responsibility to establish the standard of proof for all family based immigration, why would we suddenly have to micromanage the immigration procedures and adjudication of Alien Relative Petitions/Applications for Adjustment of Status just because same-sex couples are involved? The simple absence of a marriage certificate is not a persuasive reason, because the agency never assumes that a married couple is in a bona fide marriage because they possess the certificate. Same-sex couples lacking a certificate (that would describe some, not all) should not be looked upon as a greater fraud risk. The experience of countries such as Canada, Australia and the United Kingdom, which have long provided for same-sex partner immigration, proves that competent bureaucracies can figure out what constitutes sufficient evidence of bona fides whether the couple is gay or straight. In none of those counties has a significant fraud problem been reported in same-sex partner immigration cases.

    1. Citizen Crain on Sep 14, 2007 2:56:18 AM:

      Very strong points, Lavi. Are you saying, then, that Canada, the U.K., Australia etc did not include any specifics to avoid fraud, not even the cohabitation requirement, in the statute?

      As far as the politics, I know immigration has become a big issue in Europe and the U.K., but I doubt when gay immigration rights were adopted it was anything like the pressure cooker we have in the U.S. now. Some accommodation may have to be made for that, don't you think.

      As for Clinton and Obama, I guess I'm more inclined to believe Hillary is playing politics more than Obama but perhaps that's because he's more of a clean slate.

      Do you believe they both actually support UAFA but are afraid of the political risk? Do you judge one more likely than the other to get the thing enacted if elected?

    1. Lavi Soloway on Sep 14, 2007 3:31:09 PM:

      Chris,

      In response you have also raised important points, and you have once again inspired me. I will get to work on a blog post of my own that addresses the new Obama campaign “wrinkle.” For now, here is my reply:

      Since Canada, the UK and Australia (3 of the 16 ‘gay immigration’ countries) have parliamentary systems in which the legislative and executive functions operate more like conjoined twins than separate branches of government, it complicates the comparison. Often, those countries' policies had interesting journeys as they evolved. Usually they started as internal policy (rough equivalent to the American administrative agency regulation) and later the legislators caught up with reality and created full-fledged statutory schemes. In our system, Congress has to pass a law before anything can happen, of course. (And therein lies the rub; if only we could start with the highly specialized agency and not with jockeying pols.) Laws passed by Congress typically do not (or should not) strangle the agency with precise requirements, and inserting them because of “politics” certainly is not good government. Far more complex immigration issues are already addressed under the agency’s rule making authority.

      You are right that it is worthwhile to consider the politics of immigration (and, I would add, gay rights) in other countries that have adopted solutions similar to UAFA. If you look closely at the early to mid 1990s when "Humanitarian & Compassionate" grounds first came about as a discretionary remedy in Canada, there was opposition to formalizing the status of same-sex couples in the family class of immigration and a long, full-fledged battle ensued. Over the years, activists in Australia and the U.K. have been struggling to maintain a fair system for same-sex partners, so none of those gains were won outside of a contentious political context. (If time permitted, I would recount the incredible story of gay British Immigration Officer, Mark Watson, who gained notoriety after he was convicted and imprisoned for entering a fraudulent stamp into his Brazilian lover’s passport. Despite the controversy that ensued in the media, Watson went on to become a strong enough force as an activist to persuade the newly-elected Blair government to implement a solution for same-sex partners (“concession outside the Rules”)… without legislative fiat. ) It is true that the Brits included detailed stringent requirements (4 year cohabitation), but those were not statutory and could be easily changed, and were changed, by the Home Office once they were found to be too harsh and unnecessary.

      Does our current context make it difficult? Sure. But UAFA and its predecessor, PPIA, have been around since 2000. The political context for a bill that would extend limited legal recognition to same-sex couples for immigration purposes was offered during the height of Republican gay baiting/gay scapegoating, when campaigns were said to be won or lost on “social issues.” And yet 12 Senators signed on, and not one of them identified fraud as a concern. That is an important point, because it puts the Clinton-Barak spin into serious doubt. What of the 12 Senators that originally co-sponsored the legislation? Were they not sufficiently aware of the "fraud" issue? Vermont Senator Patrick Leahy, widely recognized as an expert on U.S. immigration law and policy? Why would Leahy not have addressed this issue? John Kerry co-sponsored it and ran for President, why was it not a problem for him to do so in a highly charged political environment? It never became an issue in the 2004 Presidential race, did it?

      We have fraud avoidance strategies in the Immigration and Nationality Act right now (admittedly they are punitive in nature, rather than detailed evidentiary standards that must be met). Those fraud avoidance strategies are deemed satisfactory for "marriage" cases, and under UAFA would be (appropriately) extended to same-sex couples. I have no problem beefing up the statutory scheme for all couples where necessary, but of course, our wily Presidential candidates are not talking about that.

      Section 2 of UAFA, defining a “permanent partner,” already goes much further than the statute’s description qualifying as a (bona fide) spouse. For example, there is no statutory requirement that spouses be financially interdependent, or intend a lifelong commitment, as is required of permanent partners. Not only is the standard applied to heterosexual married couples a lower one, it is no where in the statute. The UAFA makes a concession requiring interdependence (the Australian model) while heterosexual spouses could have completely separate finances for all anyone cares.

      I believe Clinton and Obama, in their hearts, support the passage of UAFA. I am distressed by their explanations, because they seem to be trying to have it both ways (for it and against it) and it seems disingenuous. I have visceral discomfort with the notion that when gay and lesbian couples seek this incremental step toward equality it suddenly warrants this zealous attention to fraud. It plays to the homophobia that already judges same-sex couples as less worthy or less real. No mention is made of fraud concern in connection with heterosexual binational couples, though they vastly outnumber us. If these candidates had done their job as Senators and approached UAFA with remedies for these concerns and then joined the other Senators in co-sponsoring it, we would not now be hearing their less than credible afterthoughts about "fraud."

    1. Martha McDevitt-Pugh on Sep 19, 2007 3:37:06 AM:

      The fraud issue is an old one used by people who don't support this bill.

      Congressman Nadler addresses fraud and UAFA here
      http://www.youtube.com/watch?v=Fce2X9v8lm0

      It won't be any easier to commit fraud under UAFA. The provisions to prevent fraud are the same as those used in heterosexual relationships. Do gay people want/need special treatment, i.e. extra fraud provisions? I don’t think so.

      Every time my wife and I visit the United States, we go through immigration at the airport. The immigration officer asks her a series of questions, observes our behavior, and when satisfied were are visiting for legitimate purposes, they stamp our passports and we go through customs. These officers are trained to detect fraud, i.e. people lying to gain entry. They read your micro body language. I have no doubt that the immigration officials who process spouse visas have the same kind of training. If they are understaffed or inadequately trained, that is a separate issue. It is not a good reason to block UAFA. I'm really disappointed that Obama and Clinton are using this old tactic which my senator has been using against UAFA for years.

      Immigration fraud is illegal. No matter what the burden of proof, to bring your partner into the country, you have to state that they are your partner. If you lie, you can be charged with a crime. That is how it works in the Netherlands (my home in exile), which has had same-sex partner immigration for 30 years. Fraud is not a big problem with same-sex couples.

    1. Nigel Patterson on Nov 18, 2008 1:20:53 AM:

      As an Australian (and British) citizen living in Sydney with my partner of seven years, I have a particular interest in this blog. My partner is an American (and now also Australian) citizen and we have considered moving to the USA some time in the future. It is truly unfortunate that the USA would not recognize our relationship and we certainly hope that this will change with the future government.

      The visa class for same-sex couples immigrating to Australia (by the way, it is not necessary for either party to already be an Australian citizen at time of application) is the Interdependency Visa Class (see http://www.immi.gov.au/migrants/partners/interdependency/814-826/how-the-visa-works.htm#e) and where an Interdependent relationship is defined as:

      “A relationship in which a couple have a mutual commitment to a shared life to the exclusion of all others. The relationship between them is genuine and continuing, and they live together, or do not live separately and apart on a permanent basis. This is usually a same-sex partner relationship.”

      The details of the Interdependent visa are:

      If you have been in an exclusive relationship with your partner for at least 12 months, you may be eligible for an interdependency visa. You would be sponsored by your partner for a period of 2 years. After this, if the relationship was still genuine and continuing, you would be eligible for permanent residence.

      Visa Conditions and Duration

      Once your initial application is granted, you will be issued with an Extended Eligibility Temporary Visa. This will allow you to stay in Australia for 2 years and you will have full work rights during this period.

      If you have been in the relationship with your partner for five years or more at the time of application, the two year waiting period for permanent residence may be waived.

      After the two year period, you will be entitled to apply for permanent residence in Australia provided that your relationship still continues. In some circumstances, you may be eligible for permanent residence even if the relationship has broken up before the end of the 2 year period. These circumstances include:

      • If your partner has died during this period; or
      • If you or your dependents have been subject to domestic violence during this period

      Visa Criteria

      In order to be eligible for a interdependency visa, you must meet the following criteria:

      1. you and your partner have a mutual commitment to a shared life to the exclusion of any spouse or any other interdependent relationships
      2. your relationship is genuine and continuing; and
      3. you and your partner live together, or don’t live separately and apart on a permanent basis.
      4. you and your partner have been in an interdependent relationship for a period of 12 months immediately preceding the date of application, unless there are compelling or compassionate circumstances. These include where applicants can establish that cohabitation was not legally permitted in the country in which they had lived during the 12 months.
      5. generally, you both need to be aged 18 or over.
      6. you must pass health and character criteria.

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