By Sharita Gruberg, Senior Policy Analyst for the LGBT Research and Communications Project at the Center for American Progress.
There are currently more refugees, asylum seekers, and internally displaced persons around the world than at any time since World War II. Less than 1 percent of all refugees will be resettled worldwide, and of more than half of these resettled refugees will come to in the United States. In 2011 President Barack Obama recognized that lesbian, gay, bisexual, and transgender, or LGBT, people who flee persecution continue to face barriers to access refugee protection and assistance. As part of his memorandum on “International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons,” President Obama directed federal agencies to take steps to protect vulnerable LGBT refugees and asylum seekers.
Despite significant progress toward ensuring that LGBT people have equal access to the U.S. immigration system—including training asylum officers to adjudicate claims that are based on sexual orientation and gender identity—LGBT people continue to face significant barriers to protection in the United States, particularly when it comes to family recognition. Under the Immigration and Nationality Act of 1965, or INA, asylees and refugees can bring their children who are younger that age 21 and spouses to the United States. In the INA, however, the term spouse is usually interpreted to require a legally recognized marriage. Since only 22 countries have marriage equality, LGBT people who face persecution are in the impossible position of choosing between seeking safety in the United States or remaining in dangerous situations with their loved ones. As Ugandan LGBT rights activist Victor Mukasa has said, “Homophobia separated me from my family, but so has the immigration system that has made it difficult for me to reunite with my family, just because of a document.”
The State Department’s solution for reuniting LGBT refugee families
In 2015, the Council for Global Equality—of which the Center for American Progress is a member—made the fair and equal treatment of same-sex partners of refugees and asylees a top administrative priority. The U.S. Department of State recently took a major step toward that goal. In its annual report to Congress on refugee program admissions for fiscal year 2016, the State Department announced a more inclusive interpretation of what constitutes a spouse in its Process Priorities, or P-3, program. This expanded interpretation recognizes that the vast majority of refugee-producing and refugee-hosting countries do not have marriage equality. The expanded categories within the P-3 process now allow qualifying resettled refugees and asylees who live in the United States to file an affidavit of relationship, or AOR, for their partners—thereby bypassing the need for a referral from the U.N. High Commissioner for Refugees, a process that can take years.
As a result of this change, refugees and asylees can file for their same-sex partners to join them in the United States through the P-3 family reunification program for spouses, unmarried children younger than age 21, and parents of qualified refugees and asylees. Because of P-3 program requirements, the expanded categories for family reunification are limited to certain nationalities that are of special humanitarian concern. A CAP analysis of data about LGBT asylum seekers found that 15 percent of the cases in the dataset represented LGBT people among those fleeing humanitarian crises in P-3 priority countries. Subhi Nahas, a Syrian refugee who was resettled in the United States and recently addressed the U.N. Security Council during its first-ever meeting on LGBT rights, is just one example of the many LGBT people who sought protection in the United States.
Remaining barriers to reunification
While the State Department’s new policy will help reunite many LGBT families, it represents just one step on a long road toward greater LGBT inclusivity. Many LGBT refugees and asylees will still be unable to bring their partners to the United States due to the fact only 24 countries currently qualify for P-3 status. The State Department determines the countries on its P-3 list by examining the total number of arrivals per country per calendar year. Significantly, the countries that LGBT people appear to flee most often are not accounted for in the P-3 countries list.
This decision can be explained by at least two reasons. First, the State Department does not collect data about the number of LGBT refugees who are resettled in the United States and as a result is unable to ensure that the countries where the most LGBT refugees come from are represented in the P-3 countries list. Second, the State Department does not take asylees—who arrive in the United States on their own rather than through the resettlement process—into account when determining P-3 countries. U.S. Ambassador to the United Nations Samantha Power estimates that the United States resettles between 75 to 100 LGBT refugees annually—which indicates that a higher proportion of LGBT people come to the United States as asylees rather than refugees. In CAP’s analysis of the countries from which LGBT people fled from 2010 to 2014, Russia and Jamaica consistently topped the list; neither of these countries is on the P-3 list. Uganda and Nigeria—which have atrocious human rights records and abuses of LGBT people—are also missing from the list, despite large numbers of refugees who flee from these countries each year.
There are simple measures that the State Department and U.S. Citizenship and Immigration Services can take to further promote the reunification of LGBT families. Establishing universal P-3—rather than limiting the provision to certain countries—would open P-3 family reunification to all refugees and asylees, regardless of their country of origin. Another potential way to reunite LGBT families would be to make partners of LGBT refugees and asylees eligible for humanitarian parole. Such eligibility would enable LGBT refugees and asylees to bring their partners to the United States for a limited period of time during which they can marry and extend protected status to their spouses.
While the State Department’s expansion of P-3 eligibility to same-sex partners of refugees and asylees in the United States will help reunite many LGBT families, more can and should be done to ensure that LGBT people who seek protection in the United States are not forced to choose between their safety and living with the ones they love.