March 27, 2007
Immigration law is an ass
Posted by: Chris
I promised in a post last week to pass along a couple of bizarre twists in my immigration saga. Please read on, even if this issue doesn't affect you personally. I think you'll be surprised the myriad ways, as Dickens put it, the law is an ass — especially toward us.
Canada, of course, is leaps and bounds ahead of the U.S. in realizing full equality for gay men and lesbians, especially since they have full marriage rights — first recognized by courts and then affirmed by politicians actually willing to defend their judiciary and constitution.
Not surprisingly as a result, Canada has become a popular destination for gay Americans forced into exile because our country's immigration laws do not allow us to sponsor non-American partners for residence or citizenship. Canada's immigration law, on the other hand, is fully equal — at least on its face.
Under Canadian law, foreigners can apply for "landed immigrant" status or, if they have a job offer in hand, a temporary work visa. In both cases, a same-sex partner can be included on the visa application, whether or not that partner would qualify on his/her own, so long as the couple is either married or are "common law partners," which means have lived together for one year.
For straight couples, that's pretty straightforward, since almost all countries (including the U.S.) allow their straight citizens to sponsor opposite-sex partners for marriage or even fiancee visas. For gay couples, getting married or living together for a year can be an almost impossible hurdle.
Only five countries currently marry gay couples: Canada, the Netherlands, Belgium, Spain and South Africa. Of those, only Canada and South Africa will marry two non-residents. But since Canada's tourist visa requirements are almost as strict toward developing countries as those of the United States, visiting Canada to marry is out of reach for a huge number of gay people. That leaves South Africa, where non-residents can marry and visa restrictions aren't so severe, as the single, very remotely located country where gays wishing to immigrate to Canada can wed.
"Common law" status can be even more difficult to achieve, unless one of the two partners in the binational relationship happens to live in one of the 19 countries worldwide that recognizes gay relationships for immigration purposes. Otherwise, one or the other would have to qualify in some other way to live for a year in the other's country — or a third country — all so they would then qualify as "common law partners" to move to Canada.
Once married or partnered, the application for landed immigrant in Canada can take on average between 14 and 18 months to be processed, and the associated legal fees and other expenses can run up to $3,000 to $4,000.
Meanwhile, heterosexual American can sponsor their foreign partners for fiancee visas, even if they've never met in person. And to make matters even more unequal, a relatively new State Department regulation gives gay non-Americans more rights those of us who are American citizens. That's right, a non-American granted a work visa in the U.S. can sponsor his/her unmarried partner — same or opposite sex — for a visa to come to the U.S. for the length of employment.
While it is encouraging to see the State Department, especially in this administration, take this progressive step, let's be clear about why it happened. It had little to do with uniting families or fulfilling the promise of equality without regard to sexual orientation. It had a lot to do with U.S. corporations who wanted to bring talented non-Americans, primarily Europeans, to work in the U.S. without forcing them to be separated from their unmarried partners.
So if that's the incentive our government listens to, perhaps it's time for a change of strategy for Immigration Equality and other groups pushing for passage of the Uniting American Families Act. Perhaps it's time to enlist powerful U.S. corporations in the fight for UAFA, so that they do not risk a "brain drain" of talented gay and lesbian Americans forced into exile to be with the one they love.
Take a look at this powerful story from the English-language version of El Pais, the Spanish newspaper, for some examples of how the case might be made. Love Exiles, the fantastic Holland-based group of Americans stranded abroad for this reason, would be a tremendous resource for such a strategy. Whether for economic or human rights motivations, it's time the U.S. government began treating its own citizens at least as well as it treats foreigners seeking to work here.
March 19, 2007
I miss my Fourth Amendment, Part 2
Posted by: Chris
It's been a month since I wrote about how my partner, an American friend and I were subjected to a harrowing roadblock and search by the Brazilian military police on the highway between Rio De Janeiro and Buzios. I remarked at the time that I missed the constitutional protections of our Fourth Amendment, which requires the police to have "reasonable suspicion" of a crime before stopping a vehicle and "probable cause" before conducting a search.
Flash forward to last week, and a short trip I took to Toronto. I am back in the States for a short visit and wanted to check out Toronto as a possible new home. As much as we love Brazil, it may be that hard economic realities lead us to live up north. (More later on the immigration vagaries faced by gay couples seeking refuge north of the border.)
Good friends from Pittsburgh were kind enough to lend me their (very nice) new Saab, and I drove three hours to Niagara and the Peace Bridge (pictured above) into Ontario. A polite and friendly Canadian immigration official asked me a few short questions about my visit and welcomed me into the country. My trip back into the U.S. two days later would not go so smoothly.
From the moment I approached the American border, the mood was decidedly different. The U.S. immigration guard barked at me to pull my car forward and asked me to tell him my license plate number without looking. Huh? I couldn't do that in my own car, and I quickly explained that I was in a friend's vehicle. It all went downhill from there.
I produced my license and the car's registration, as requested, and the guard said, "You know your registration is expired, right?" No, of course I didn't; it wasn't my car. He told me he was confiscating my documents and sending me to an area off to the side for further questioning.
Once parked and inside, I answered even more questions about my trip, but then the inquiry began to range far afield, about my life in general. I told the officer I that I didn't understand how his questions were relevant. That led to a sharp rebuke from the border guard, who said that every question was asked with good reason and I needed to answer.
Now I'm not your average citizen. I'm an attorney with many, many years of experience in civil rights and civil liberties work. I know by heart my constitutional protections. Yet even as an American citizen on American soil, I was unsure of how to proceed. Do I have the same rights at the border, trying to enter, as I would have once I was through the crossing? Did I have the right not to cooperate with this fishing expedition into my personal life, even if my answers wouldn't incriminate me?
I'm embarrassed to say that I didn't — and don't — know. Like most people, I felt the pressure and mostly wanted to be done with the confrontation. I was worried they might impound the car if the registration is expired, and where would that leave me?
So I answered all the questions as best I could, though the border guard seemed to grow more incredulous with every reply. He took copious notes as well and for the next 45 minutes to an hour, typed a large amount of information into his computer. Is this some sort of record about me and my life? Will it be used against me in the future, either domestically or when I want to enter or leave the country?
Is the government entitled to retain this information indefinitely, simply because I availed myself of the basic right to travel outside the country?
I couldn't help noticing, as well, my fellow travelers stopped and questioned by U.S. authorities. To look at them, you would think that America faces an especially significant threat from 70-something women with bad hair and a penchant for bingo. I know I felt safer just knowing these ladies couldn't enter the country without some sort of screening. And this was the screening room for Americans, mind you, not for non-citizens. I can only imagine what they get put through.
After more waiting, I was informed that two officers were going to search my car and its contents, and I could watch if I wanted. Of course I wanted, but I was kept so far at a distance that if they were planting something, I almost certainly wouldn't have seen it.
Finally, after a search about as thorough as the one in Brazil, and with no more "probable cause," I was told I was free to go. But what about the car registration, you ask? It was a lie. A bold-faced lie. It was valid and not due to expire for months.
At the time of our shakedown last month by the Brazilian military police, I wrote that I was reminded of how "absolute power corrupts absolutely":
The constitutional protections we Americans take for granted — including our Fourth Amendment right against unreasonable search and seizure — aren't just protecting us from overzealous law enforcement and "anti-terrorism" measures, they're protecting us from the corruption that would inevitably follow if the police were given even more power over the citizenry.
I hadn't imagined that those words would be echoing in my ears just one month later, this time because I had been bullied with bold-faced lies by abrasive and rude U.S. police — no doubt emboldened by the Patriot Act and the disrespect shown for the rule of law all the way up their chain of command.
I understand and respect the need to safeguard our borders and protect our national security. But my border crossing reminds me just how willing we have been to sacrifice our ideals supposedly for the sake of protecting them. If we can't uphold them in times when they're threatened, what good are they really in times when they're not?
December 08, 2006
Canada defends marriage, charter
Posted by: Chris
Canadian lawmakers voted yesterday to defeat a Conservative Party effort to reopen debate on the country's law allowing gay couples to marry. The vote was seen by many as Prime Minister Stephen Harper's perfunctory attempt to fulfill a campaign promise to social conservatives to try and re-open the issue, after Parliament passed landmark legislation last year making opening marriage up to gay couples.
The vote this time was 175-123, an improvement over the 158-133 tally last year, even though Conservatives have since taken control of Parliament (over corruption issues, not gay marriage). Even many Conservative ministers in leadership roles voted against their own party, saying the issue should now be closed closed.
Yesterday's motion was a last-ditch effort to prevent same-sex marriages from taking hold in Canada, although even Conservatives promised they wouldn't revoke more than 12,000 marriage licenses issued to gay couples since the change in the law. In some ways, Harper's Conservatives were following the same script as George W. Bush's Republicans, following through on a campaign promise by introducing a motion on gay marriage they knew would be defeated. In similar fashion, Republicans forced votes in 2004 and 2006 they knew they would lose on an amendment to the U.S. Constitution that would ban states from marrying gay couples.
What's more striking, however, was the stance taken on the other side of the aisle. In the U.S., Democrats have run screaming from the gay marriage issue, opposing a federal marriage amendment as unnecessary and a political diversion from "real issues."
In Canada, as in the U.S., the initial impetus to marry gay couples came from judges, who ruled that it was required by that country's Charter of Rights & Freedoms — their Bill of Rights. But the Liberal Party — another label they embrace rather than running from! — didn't hide from the judges' ruling; they defended it. Imagine! The National Post reported:
Liberal Leader Stephane Dion called the prospect of re-opening the gay-marriage issue “an attack against the Charter.” … He reacted with pleasure to the results of the vote, saying Harper tried and failed to overwrite the Charter of Rights & Freedoms. “We are the party of the Charter. … It’s good news for the Charter, for the rights of all Canadians,” Dion said.
How impressive it would be to see Democrats show the same cajones, and defend the role the judiciary plays in our constitutional democracy. "We are the party of the Constitution and the Bill of Rights," they could say. "The Republicans are attacking the Bill of Rights and the Constitution, and that's bad news for the rights of all Americans."
Yes, Canada is not the United States, and conservative Christians are far more influential in the U.S. than they are north of the border. But if Howard Dean's Democrats weren't so willing to sacrifice a full-throated defense of gay Americans in some delusional effort to win white evangelical votes, we wouldn't see gay marriage already banned in so many states. And many Americans, whatever their views on judicial activism and gay marriage, might see a Democratic Party willing to stand for something other than opposing Republicans.
