*Added May 27, 2009: The comments section of this post was shut down due to the hostile nature of the posts. This piece will be returning to Queercents and has already reappeared, with significant additions, to Bilerico. Those who would like a fuller picture of the events that led to the closing of the comments here can visit “Yasmin Nair: Eat This! Or, How To Leave Comments Without Going up In Flames” at
http://tinyurl.com/o3p5c3 *

NOTE: The information presented here is based on research, community discussions, and conversations with lawyers.  It does not constitute  legal advice.  If you or someone you know has legal issues like the kind discussed here, please seek the expertise of a qualified attorney.
This is the first of a series on immigration reform and its effects on the LGBTQ community.

Shirley Tan came here in 1986 as a tourist. Then, she overstayed her visa, supposedly after meeting her female partner Jay Mercado who was, like her, originally from the Phillipines.  Mercado is currently a citizen, but Tan is still undocumented.  They have been domestic partners for a while, according to a People article, and even wed in 2004.  Tan gave birth to their twin sons who are both citizens.  In 1995, Tan applied for asylum because, in 1979, according to her, a cousin shot her in the head and killed her mother and sister. In 2002, ICE (Immigration and Customs Enforcement) served Tan with an order of deportation, but the couple claim to never have received it.  Finally, this year, on January 28, ICE agents showed up at the couple’s Pacifica California home and arrested her.  Today, after a flurry of press coverage, comes the news that her order of deportation has been stayed through 2010 and a private bill on her behalf has been issued in Congress.

Immigration Equality and other supporters of Uniting American Families Act (UAFA) have made Shirley Tan and her family members the poster children for a piece of legislation that, they claim, would guarantee that binational couples like the Tan-Mercados are able to stay together.  Why is this important?  Under existing law, in many circumstances, heterosexual married citizens or permanent residents are able to sponsor their partners for immigration.

The average person on the street assumes that immigration through marriage is a “Ta-da!” solution.  Your partner/best friend’s visa expired and she might have to return to her country when she’d rather stay here?  Ta-da! A quick visit to the County marriage office and all your problems are solved.  UAFA proffers to many the same quick-fix method by simply inserting the words “permanent partners” wherever the word “spouse” is mentioned.  In reality, immigration through marriage doesn’t work so easily.

I’m against UAFA for a number of reasons, not the least of which is this: even if immigration through marriage/permanent partnership is a solution, who says it’s the ideal solution anyway?  And why push for a law that guarantees rights to a privileged few while leaving the plight of others unquestioned?

As an immigration rights activist, my concern is with comprehensive immigration reform (CIR).  The current immigration crisis has come about because the United States feeds on cheap labor and the exploitation of millions, the very people it chooses to dispose of quickly and crudely via the mechanisms of raids and deportations.  It does this because it knows that there is more cheap labor to be had because of the conditions of “free trade” it has created, conditions that guarantee a breakdown in the economies of countries like Mexico.  These conditions, in turn, guarantee the flow of people desperate to find a living here.

But, ah, you might say, but Shirley Tan isn’t one of them.  Tan and Mercado, as the People article makes clear, are upstanding suburbanites.  Why, she’s even a stay-at-home soccer mom!  Rachel Tiven of Immigration Equality drives the nail home in a quote: “They are exactly the kind of people you want living in this country.”  Right. The others can just rot in hell.  You know the ones we mean – the day laborers who move from job to job, underpaid and overexploited; the low-paid workers who build suburban houses for us on the cheap as opposed to living in them, and so on.

This is only my first problem with UAFA – it doesn’t really change the paradigms of immigration.  It fixates on an emotional and affective problem, posited as a problem of true love – what’s truer than decades of living together and children?  It’s a quick-fix solution for a privileged few and does nothing to address the larger economic crisis that is immigration in the United States.  Proponents of UAFA have made it clear that they will fight for it to be a stand-alone bill if it doesn’t become part of CIR.  You might argue that gays and lesbians deserve to have a bill that just speaks to their own interests, damn it.  After all, haven’t we endured enough discrimination in a country that doesn’t even recognize our marriages?

Well, not really.  Just like gay marriage was thrust down “our” collective throat as “the gay rights cause” (excuse me, when did we vote on that and who made these gay marriage proponents our leaders anyway?), UAFA is now being presented as THE immigration cause for LGBT people. If we as a gay and lesbian community are to speak about immigration in any form, we need to understand the larger context in which such bills operate.  The UAFA will not benefit every gay and lesbian couple, and it’s going to be a distraction from CIR.  It makes a grand symbolic gesture, but it’s also most likely an exercise in futility that will not, in fact, even benefit many binational couples.

For instance, if you or your partner entered the country illegally and without inspection, chances are that spousal sponsorship won’t help anyway.  But, and here’s a huge complication that can enter even for straight couples: under certain circumstances – even a spouse can be subject to a 10-year ban, which means that she/he will have to return to the country of origin and not return for a decade.

Is your head spinning yet?

What it comes down to is this: Under very narrow circumstances, Shirley Tan’s case could be replicated in a straight binational marriage, but each case is unique and not all straight marriages are automatic routes to citizenship.  Tan’s case is somewhat complicated because she also sought to gain asylum, a petition that was denied (I’ll write more about asylum in an upcoming column).  But even if all things were equal, there’s the issue of economics.  UAFA deems it necessary that the sponsoring partner show proof of ample resources, which leaves poorer people out of the picture.  In fact, IE and HRC (another organization that’s keenly behind this bill) representatives at a recent immigration conference I attended spoke about the need to show the economic costs if binational couples decided to leave the United States for a country like Canada that recognizes their relationships – they might just up and leave!  This is the supposed trump card – if gay and lesbian couples aren’t allowed to be together, several of them with lucrative businesses will just take them to countries like Canada.  So there.

Of course, if you don’t have the resources, tough luck.  And good lawyers who won’t just take your money and run can be hard to find.  In addition, the speed with which your immigration application goes through the system depends a lot on your country of origin.  What most people don’t know is that immigration law is an arcane and shape-shifting monster that’s subject to the whims of issues as fickle as shifting relations between United States and relevant countries. So, if your partner is from a country like, say the Netherlands or France, the chances are that your passage will be easier.  If you’re from Iran or Pakistan –well, how easy do think your application will be?  And then there’s the fact that green card marriages are subject to incredibly close and personal questioning by immigration officials, including details about your sex life.

What’s also left out of the whole spouse/permanent partnership issue is the fact that such relationships are also likely to be rife with abuse. UAFA specifically requires that partners demonstrate financial interdependency.  Partnerships, like straight marriages, will be subject to a two-year period during which much of the power rests with the sponsoring partner. If you’re on your spouse’s H1-B, you can’t get a social security number and you can’t apply for jobs.  The Hindu, an Indian newspaper, has written about the abuse of women on their husbands’ H-4 visas.  Is this the kind of situation we feminist queers fought for?  Do we seriously believe that the pure love between gays and lesbian couples makes it impossible for such abuse to occur?

Did you really think your love would be enough?

So where does this leave Shirley Tan and others like her?  It absolutely makes sense that we agitate on their behalf.  If there’s a petition to sign, sign it.  If there’s a march in your town, go ahead and march.  At the very least, the law needs to change so that it’s more flexible and grants people like Tan the leeway to be in the country they now call home.  But, at the same time, ask yourself, as either a queer or a straight citizen, about those millions of undocumented who don’t have the resources to leave.  Consider those millions of undocumented who might be in binational relationships but are not considered idea families/relationships because they lack the money and respectability that the law demands.

What do we, whether straight or gay, really know about the larger picture of immigration reform?  Why, in these undoubtedly sad cases of binational cases, are we willing to only act on our emotions but not consider asking: what happens to the larger issue of CIR?

The fact is that UAFA doesn’t really stand much of a chance in large part because Republicans and Democrats alike worry that it’s a way of writing gay marriage into federal law.  And, let’s be blunt about it: it is, even if UAFA supporters insist to the contrary.  This is marriage by another name.  I happen to be against gay marriage for reasons that have to do with my position on the left, but there are plenty of people on the right who don’t want it for different reasons.  If UAFA is forced into CIR, there’s a chance that CIR itself will suffer because UAFA might well become the proverbial straw that breaks the camel’s back.  Gays and lesbians in binational couples and their supporters will be able to make an emotional and symbolic point about the discrimination they suffer, but the costs to CIR may be irreparable.  So, go ahead and protest for Shirley Tan and others like her.  But if you can’t or won’t protest on behalf of the millions of others who don’t fit the cozy and unrealistic idea of “family” as well, don’t protest at all.