Immigration

• Author: Ally Windsor Howell
• Profession: Former practicing lawyer from Alabama
• Pages: 175-192

U.S. law does not explicitly prohibit transgender people from visiting or

immigrating to the United States. Transgender people should face no sig-

ni cant or systemic dif culties in obtaining the vast majority of visas (e.g.,

tourists, students, employees of a company based in the United States).

Many transgender people have immigrated to the United States due to

their marriage to a U.S. citizen or permanent resident. However, due to the

legal dif culties that some transgender people occasionally face in getting

recognition of their marriage, couples in which one partner is transgender

are strongly encouraged to seek legal information and advice before apply-

ing for marriage-based immigration. See Chapter 6, “Family Law,” § 6.1

“Marriage.” Immigrants in the U.S. face a range of challenges and hostili-

ties, and the current broken immigration system violates basic standards

of decency through inde nite detention, separation from partners, and the

denial of medically necessary health care. Because of sometimes-unclear

documentation, challenges to their marital status, and blatant discrimina-

tion, transgender immigrants face additional hardships.

Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat.

2419, 2419 (1996), 1 U.S.C.A. § 7, is no longer an impediment to the recog-

nition of lawful same-sex marriages and spouses under the Immigration and

Nationality Act if the marriage is valid under the laws of the State where it

175

Immigration

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was celebrated. It was declared to be unconstitutional by the U.S. Supreme

Court in United States v. Windsor.

1

The Board of Immigration Appeals has

begun recognizing and applying the Windsor decision in immigration cases.

2

§11.1 Asylum Statutes and Regulations

Anyone who is in the United States and has been harmed, or fears harm,

in their home country because they are transgender, or because they don’t

otherwise conform to gender norms, should strongly consider applying for

asylum. Legally, the past harm, or fear of harm (called persecution), has to

come from the government, or an agency that the government will not or

cannot control in the person’s home country. The fear also has to be “legiti-

mate,” which means that asylum applicants must provide some evidence

of the harm they have suffered, harm that other people like them have suf-

fered, or the existence of a policy or practice that would facilitate such harm.

Asylum is available to people who fear harm based, at least in part, on

their race, religion, nationality, membership in a particular social group,

or political opinion. Many transgender people have received asylum in the

United States because, in their individual case, being transgender or gender

nonconforming has been found to be a part of a particular social group.

Asylum allows a person to stay in the United States, receive a work permit

and public bene ts, and eventually apply for a green card.

Under the Immigration and Nationality Act,

3

the Secretary of Homeland

Security or the Attorney General may grant asylum to an alien who has

applied for asylum in accordance with the requirements and procedures

established by the secretary of homeland security or the attorney general

under this section if the secretary of homeland security or the attorney gen-

eral determines that such alien is a refugee.

4

On December 6, 2011, President

Obama issued a Presidential Memorandum that provides:

Those LGBT persons who seek refuge from violence and persecution

face daunting challenges. In order to improve protection for LGBT

1. United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675 (2013).

2. See e.g.: Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013).

3. 8 U.S.C. § 1101, et seq.

4. 8 U.S.C. § 1158(b)(1)(A).

TRA NSGENDE R PERSONS A ND TH E LAW 176

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