This year marks the 50th anniversary of the passage of the Immigration and Nationality Act, or INA, which ushered in the birth of America’s current legal immigration system. The INA represented a sea change in U.S. immigration policy; it abolished the racially based quota system that defined American immigration policy for four decades and replaced it with a policy whose central purpose was family reunification, with a preference for immigrants with specific skillsets. In the words of former President Lyndon B. Johnson, the INA’s passage “correct[ed] a cruel and enduring wrong in the conduct of the American Nation.”
Yet while the INA represented a fairer approach to immigration, it also created new restrictionson admissibility, specifically for lesbian, gay, bisexual, and transgender, or LGBT, people. The INA replaced the exclusion for immigrants possessing a so-called psychopathic personality with a ban on “sexual deviation,” a catch-all to exclude LGBT people from entering the United States. Although the American Psychiatric Association removed homosexuality from its list of medical conditions in 1973, the INA entry restriction remained in place until “sexual deviation” was removed by the Immigration Act of 1990.
Despite this reform, however, there still remained many restrictions on LGBT immigrants who wished to lawfully enter and remain in the United States. Many LGBT immigrants were still denied admission to the United States, since the ban on people with HIV entering the country was not lifted until 2010. And even though the United States has recognized persecution on the basis of sexual orientation as grounds for asylum since 1994, Congress passed the Defense of Marriage Act, or DOMA, in 1996, which discriminated against same-sex married couples by denying them access to marriage-based federal benefits, including sponsorship of a spouse for an immigrant visa. It was not until 2013—when the Supreme Court found Section 3 of DOMAunconstitutional—that married binational same-sex couples received equal treatment under U.S. immigration law and could live without fear of being separated by deportation.
Although we have seen great progress in the 50 years since the INA was passed, additional measures are needed in order to ensure that LGBT immigrants are not disproportionately disadvantaged in attempting to access the legal immigration system. As an LGBT rights advocate and transgender man who faced persecution in Uganda, Victor Mukasa has firsthand experience with the ways in which the U.S. immigration system fails to meet the needs of LGBT immigrants. Mukasa, founding director of Sexual Minorities Uganda, or SMUG, and current executive director of the Kuchu Diaspora Alliance-USA, or KDA-USA, came to the United States in 2012 seeking protection from abuse and persecution. He was one of the most famous LGBT activists in his home country of Uganda, where advocating for such reform can be a death sentence—as it was for his friend and colleague David Kato. In an interview with the author, Mukasa shared his views on the remaining challenges that the U.S. immigration system poses for LGBT people, particularly those seeking protection in the United States from persecution in their home countries.
While Mukasa, who won his asylum case, was fortunate enough to be represented pro bono byImmigration Equality—the largest organization providing free legal services to LGBT people seeking protection in the United States—there is currently no right to appointed counsel in immigration cases. A study showed that people represented by a lawyer are 500 percent more likely to win their immigration cases than those without a lawyer. For LGBT asylum seekers who risk deportation to unsafe countries if they lose, having a lawyer can be the difference between life and death. The discrimination these immigrants faced in their home countries also makes it unlikely that they will be able to afford a lawyer, and there are not enough pro bono immigration lawyers to meet current demand. LGBT asylum seekers are also endangered when they are detained for seeking protection in the United States. Not only are LGBT people in detention at increased risk of physical and sexual violence, but detention also severely decreases their ability to win asylum, with only 3 percent of detained and unrepresented immigrants winning their immigration cases.