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The Immigration Conundrum

by Christine Flowers

Terry McMillan, celebrated author of "How Stella Got Her Groove Back" recently made headlines when she announced that she was divorcing her husband. The last time that the word 'divorce' had earth-shattering implications was when the former Prince of Wales decided to abdicate from the British throne because he'd fallen in love with a divorcee, Wallis Simpson. Why, then, did the author's news make such an impact?

The reason is simple: McMillan charged her husband, a Jamaican native many years younger than she, with being gay. This, in and of itself is not grounds for divorce, although it does provide fodder for the headlines (Governor McGreevey, anyone?) What really captured the public's attention was McMillan's claim that her soon-to-be-ex had married her for the sole purpose of obtaining his United States citizenship.

In all fairness, "Mr. McMillan" maintains his innocence, and counters that his wife is homophobic, something which is as unlikely as it is irrelevant. In the dangerous world of "He Says, She Says" it's virtually expected that warring spouses will accuse each other of everything short of high crimes and misdemeanors, and the truth becomes a victim of circumstance.

But the fact that McMillan made the charge points out a troubling flaw in our current immigration system.

It is relatively easy to obtain permanent residence through marriage these days. While the immigration system is designed to weed out fraudulent unions, it is generally difficult to establish when a foreign national is marrying for ulterior motives and not for love (and perhaps the baby carriage).  I have dealt with literally hundreds of individuals over the past ten years who have obtained their permanent residence or 'green cards' through marriage to a United States citizen, and the overwhelming majority of them are still married to their spouses.  But of course there are bad apples in every orchard, and I have also heard of those who have used and abused the sacred state of matrimony for purposes which have nothing to do with finding a soulmate.

Some have married in order to obtain work permission.  Some have married in order to avoid going home and face persecution in their countries of origin.  Some have married simply because it was easier to get 'hitched' than to go through the often complicated paperwork necessary for a work-based visa.  And, as McMillan accuses her husband (although we don't know this for certain), some marry because they are gay, and want to live with their U.S. partners who, because same-sex marriage is generally not permitted, can't sponsor them.  This is a conundrum which is beginning to receive some attention in the immigration system.

Gays and lesbians have traditionally had a difficult time when it comes to immigration matters. For many years, homosexuality constituted a ground of 'excludability' under the Immigration and Nationality Act (the 'INA').  Congress could bar 'aliens afflicted with psychopathic personality, epilepsy and mental defect' from entering the United States.

In Matter of P, 7 I & N Dec. 258 (1956), the Board of Immigration Appeals (an appellate level court) wrote that "Existing law does not specifically provide for the exclusion of homosexuals and sex perverts [but] the Public Health Service has advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental sufficiently broad to provide for the exclusion of homosexuals and sex perverts." 

Eleven years later in Boutilier v. INS, 387 US 118 (1967), the Supreme Court determined that homosexuality was indeed one of those 'conditions' described in the Act as constituting a mental pathology.  Therefore, the Court held that the exclusion of foreign nationals based upon mental illness applied to those individuals who were identified as homosexual, since the homosexual was, by statutory definition, mentally unfit.  This somewhat tautological reasoning was made possible by the American Psychiatric Association ('APA') which, in 1952, held that homosexuality was a mental illness or, more specifically, a 'sociopathic personality disturbance.' Additionally, in 1965, Congress had amended the Immigration and Nationality Act to include the words "sexual deviation" as an excludable ground, and anyone who admitted to being homosexual was refused entry.

Eventually, in 1974, the APA revised its position and held that homosexuality was not an illness or mental disorder.  Six years later, on September 9, 1980, the INS issued guidelines which provided that an alien would not be questioned as to his or her sexual preference at the time of admission. However, aliens would be subject to secondary inspection if they made an "unsolicited, unambiguous oral or written admission of homosexuality" or if a third party undergoing inspection voluntarily implicated the individual.  In other words, the Service instituted what amounted to a "Don't ask, Don't tell" policy with respect to sexual orientation.

Eventually, in 1990, Congress resolved the matter by deleting the statutory language which barred 'sexual deviates' from the United States, thereby guaranteeing that sexual orientation alone was no longer a valid basis for excluding a prospective immigrant.

Even though the government no longer targets gays and lesbians for exclusion or deportation, as noted above, homosexuals do not enjoy the same rights and benefits as their heterosexual counterparts with respect to permanent residence.  Same-sex unions are recognized in only a handful of jurisdictions in this country, most notably Massachussets. In 1982, the Ninth Circuit held that Congress intended to preclude same-sex unions from conferring immigration benefits upon the parties, even though the union might be recognized in the jurisdiction within which it had been contracted.  Moreover, in 1996, Congress passed the Defense of Marriage Act, which defines marriage as the "legal union between one man and one woman as husband and wife."  Therefore, under current law, gay and lesbian citizens are incapable of petitioning for their partners, regardless of the length or nature of the relationship.

This might change in the not-too-distant future. Two years ago, Representative Jerrold Nadler of New York introduced the "Permanent Partners Immigration Act" which would radically alter the definition of 'family member' for immigration purposes and would open the door to permitting gay and lesbian foreign nationals to obtain their 'green cards' based upon a same-sex relationship.  The law would define a 'permanent partner' as any person 18 years of age or older who is: (a) in a committed, intimate relationship with an adult U.S. citizen or legal permanent resident 18 years or older in which both parties intend a lifelong commitment; (b) financially interdependent with that other person; (c) not married to, or in a permanent partnership with, anyone other than that person; (d) unable to contract with that person a marriage cognizable under the Immigration and Nationality Act and (e) is not the first, second, or third degree blood relation of that other individual.

Critics have attacked the bill as opening the door to fraud, given the difficulty of establishing the good faith of these types of relationships and the lack of evidence that they are bona fide.  Some have also raised objections to providing a benefit based upon relationships which offend the religious and moral beliefs of many Americans. The first issue can be dealt with relatively easily by remembering Terry McMillan's claim that her gay husband married her for his citizenship. Desperate people will take desperate measures to be able to live here, and unfortunately that includes feigning sexual orientation. It is arguably better to allow individuals to obtain an immigration benefit by telling the truth about their sexuality, and thereby discourage the use of fraud and subterfuge. The second argument is more difficult, since it involves changing hearts and minds. If you believe that same-sex relationships are immoral (and many do) you would not be willing to encourage the recognition of these relationships in any way, shape or form. And the legislators who are considering the Permanent Partners Act are among the same ones who voted for the Defense of Marriage Act. This may be why the bill has been languishing in committee.

Given the firestorm over same-sex marriage and the reaction to the Supreme Court's decision in Lawrence v. Texas decriminalizing anti-sodomy laws, it is clear that the PPA has an uncertain future.

One thing is certain, however. The introduction of the Permanent Partners Immigration Act indicates to what degree society has changed over the past fifty years. Two generations ago, gays and lesbians were in danger of being deported as sexual deviants and mental misfits whose sexual orientation made them undesirable as immigrants.  Today, there is a possibility that same-sex unions will be given the same consideration under the immigration framework as heterosexual relationships.

This, of course, won't help either of the McMillans. Let's hope they both eventually get their groove back.

About The Author

Christine Flowers practices immigration law with the law firm of Joseph M. Rollo and Associates, P.C. in Philadelphia, Pennsylvania. She can be reached at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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