Friday, March 30, 2012

Confusion at the Border for Same-Sex Binational Couples

by Kathy Drasky

This story was originally published on

A small item in the news this week reveals that the sub-agency of the Department of Homeland Security (DHS) that polices our borders and ports-of-entry is making plans to recognize same-sex couples so that more families can file a single Customs Declaration form when returning from travel abroad. If implemented, the new rules will mean that you and your partner will be able to fill out one customs form when you arrive in America and you will finally be able go up to the Customs and Border Protection (CBP) officer’s desk together.

This simple step, one that heterosexual married couples take for granted, will apparently save the federal government up to 75,000 hours a year of customs agents’ time. Same-sex couples travel a lot!

But there’s a catch: even though that CBP officer serves two functions (customs and immigration control), that form only reflects that same-sex couples will be recognized as a family for the purposes of the customs part. As for immigration? If you’re in a same-sex binational relationship like me, an American citizen legally married to an Australian, you will continue to be regarded as “legal strangers.” That means being separated at the border.

My Australian wife has managed to stay in America for 11 years on a combination of work visas that have led to her successful filing for and approval of a green card. However, because of the current state of US immigration, green card processing is backlogged for several years.

While we wait for the backlog to clear, we will continue to be separated when re-entering America until someone in the Obama Administration figures out how to undo the double-talk and tiptoeing around the Defense of Marriage Act (DOMA) and understands the impact of the real harm that this unconstitutional law causes.

When Viki and I re-enter the US, I go to the line that says “US Citizens and Permanent Residents”. Viki goes to the line for “Visitors” where she is fingerprinted, photographed and asked about her employment. My name is never mentioned, because at the border, our marriage is meaningless. Once again we are reminded of that dreadful terminology under which our relationship falls thanks to DOMA - “legal strangers.”

It is frustrating for us both as I collect the baggage and wait…and sometimes wait for what seems like a very long time, which sets off a panic. I become agitated, experience heart palpitations and my hands start to sweat. I fear that after a long plane ride, without much sleep Viki will misunderstand a question, lose her composure, be taken into secondary and have no way to contact me, in spite of having complied with every immigration requirement at every step of her journey to becoming a US permanent resident.

I am all too familiar with stories of same-sex binational couples being forcibly torn apart at the gate and entry denied to the foreign spouse. Reasons range from a customs official’s assessment that someone is entering the US too frequently on a tourist visa or a snafu in the paperwork. We are only ever one immigration officer’s opinion away from Viki being taken into secondary and questioned as to why she doesn’t have a green card yet. She’s been asked this once by an official who thought everyone who had an H1B visa for 6 years automatically got their green card – or left the country.

Just as you know what you’ll do in your home if there is an earthquake or a fire, I know what I will do if Viki does not eventually emerge from customs. I will call her immigration lawyer (as she won’t be allowed to make a phone call to him, much less me). I will call my friends at Out4Immigration and I will call the dynamic attorney who is single-handedly stopping deportations of same-sex foreign partners of US citizens, Lavi Soloway of Stop the Deportations: The DOMA Project.

I know that because Viki does indeed have a valid work visa, the “misunderstanding” will be cleared up. At my most irrational point while waiting to see my wife’s face again, smiling, and back on American linoleum at the baggage carousel, unscathed, I know if it’s not, we’ll move to Australia. While we also cannot enter that country together until we take the steps to have our relationship recognized by their federal government for immigration purposes, Australia does allow its citizens to sponsor same-sex partners for residency. That’s a huge step ahead of America.

But as an American citizen, that’s not the point. Our relationship should be recognized here by the federal government and we should have access to the 1,138 federal rights that DOMA currently bars same-sex couples from receiving. Incidentally, one of these rights is the right of an American citizen to sponsor their foreign partner for a green card. That’s one area where the green card backlog seems nonexistent. There’s a very good chance at some point DOMA will be repealed and I will be able to file a marriage-based application for Viki’s green card. That might come sooner than the backlog for work-based green cards is cleared.

Some brave same-sex binational couples working with Lavi Soloway are already challenging the spousal green card ban and filing applications. Like those attempting to enter the country through a border crossing with proper passports and visas in tow, who are at the mercy of a discerning customs official, these couples are at the mercy of an immigration judge, a deportation officer, an Immigration & Customs Enforcement prosecutor, or the United States Citizenship and Immigration Service bureaucracy - in some cases, all of them. Will the judge take into consideration the Obama Administration’s declaration in 2011 that DOMA is unconstitutional and hold a green card application in abeyance until DOMA is repealed? Or will a subsequent president come to power and decide to defend DOMA in court and unravel the small steps we’ve made toward getting DOMA off our backs and out of our lives?

Same-sex couples in general have their hands full with daily doses of discrimination and homophobia, but for those of us in binational relationships, the discrimination and homophobia always seem just a little closer to home. Maybe that’s because our home here in the United States is on such shaky ground, just one immigration official’s opinion away from shaking it to its very foundation. The fact that US customs is making plans to recognize same-sex couples at the border is a positive step. It opens the dialog for same-sex binational couples to point out that little fixes to inequality here and there will never be enough. Our marriages need access to all 1,138 federal rights, not just a few.

1 comment:

Martha McDevitt-Pugh said...

Thank you Kathy for sharing your story and what you and Viki go through when you travel and in your daily lives. Waiting for a green card has got to be an agonizing process and while I have not been through it myself I can only imagine that the uncertainty takes its toll.

I want to share with you and your readers some additional information on going through immigration together as a couple. Several years ago the Love Exiles Foundation hosted an event with the US Consul General in Amsterdam. The audience were binational US-Dutch (mostly) couples living in the Netherlands because we lack recognition of our relationships in the USA. The Consul explained how the visa system works and outlined options for our partners. Several people in the audience had had the kind of nerve wracking and frightful experience you and Viki describe in your article: going through immigration separately and waiting and desperately hoping that all goes well. A few, myself included, had also had polite and curious immigration officials ask us if we were traveling alone (no we were not) and suggested bringing our partners through the immigration line with us next time. And many of us having been doing so every since. The Consul recommended this as it is SAFER for those of us who are living outside the USA. That's because the job of the immigration official is to understand the whole story and when you enter together it is much easier to understand why your partner is entering the USA. If he or she is on their own, and if the two of you are visiting family in the USA, it is rather effective just to say so. I’ve done this dozens of times and it works very well. My wife and I always get into the country quickly and safely when we tell the truth.
The point is that it seems rather suspicious if your partner explains they are on a holiday alone or “visiting friends” when in fact they are with you to visit family. Not to mention that it is not true and you are essentially withholding information, which the immigration officer is trained to detect. This avoiding a risk actually creates a risk.
I wanted to share this as some of the people reading this may be in a situation where they are safer entering the USA together. It is allowed. It is up to the couple to decide. I believe that we need to be as open and honest as possible when dealing with the authorities as our love is just as valid as anyone's and we are legitimate, loving families that deserve recognition and we need to ask for that recognition whenever possible. Even at the border.