Immigration, Marriage Equality, and “Coming Out”

Written in collaboration with Attorney Jessica Oliva-Calderin.

The “coming out” process is a recurrent topic of discussion in the LGBTQ community. Exposing an area of our lives so intrinsic to ourselves could be menacing due to prejudice and stigma. However, what happens when there are three areas of our lives that are hidden in the closet? Many Latinos in the United States face the struggle of what is commonly known as the “triple coming out”. These individuals are often ashamed or scared of revealing that they are lesbian/gay/bisexual/transgender, HIV positive, and undocumented. Fortunately, with the overturn of DOMA, undocumented Latinos and Latinas in same-sex loving relationships now have the same legal right to immigration benefits when married as heterosexual couples. Hopefully with this change, the “triple coming out” process will be less excruciating for some.

Following the repeal of Section 3 of the Defense of Marriage Act (DOMA) in 2013, the United States Immigration and Citizenship Services (USCIS) has been directed to review immigration visas in the same manner as those filed on behalf of an opposite-sex spouse and to treat same-sex marriages exactly the same as opposite-sex marriages.

Today, the place-of-celebration rule will govern same-sex marriages in exactly the same way that it governs opposite-sex marriages. Meaning that unless this marriage is incestuous, polygamous, or otherwise falls within an exception to the usual rule, the legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage was celebrated. The domicile state’s laws and policies on same-sex marriages will not bear on whether immigration authorities will recognize a marriage as valid.

In this regard, an applicant’s eligibility to petition for a spouse will not be denied as a result of the same-sex nature of the marriage.  Immigration authorities will apply all relevant laws to determine the validity of a same-sex marriage exactly the in the same manner as an opposite-sex marriage. USCIS, however, has made it clear that civil unions or domestic partnerships will not be recognized.

The evidentiary burden is on the applicant seeking the benefit.  However, USCIS understands that because of the nature of a same-sex marriage, some evidence may not be available.  Rather than focus on the evidence that is unavailable, immigration officials will review the evidence that is in the record. The only issue is whether the petitioner met his or her burden of proof (either by a preponderance of the evidence or by clear and convincing evidence) in proving a bona fide marriage relationship. Individuals should not be penalized for failing to produce certain documents that the adjudicator may expect, but rather will be flexible.

The fact that marriage is now an option to solve immigration status helps our Latinos/as open one of the closet’s door more easily. However, opening this door often requires opening the closet’s door of being LGBTQ, and sometimes the closet’s door of being HIV positive to friends and family members. This is not an easy task to do since stigma is still highly present in the conversations of Latino families. These conversations more often require an understanding of acculturation and generational differences among family members. When deciding to conduct these conversations, the partner or couple should consider the following three tips: (1) Talk first with the family member that would be more likely to assimilate the information in a less judgmental way; (2) Try to anticipate the best outcome, worse outcome, and more realistic outcome of the conversation; (3) Decide what place and time is best to disclose the information. Many reasons why these conversations are difficult to have in Latino families is because of language differences when expressing feelings, stereotypes perpetuated for many generations, misinformation about the topics, and sometimes due to religious beliefs. The individual should try to answer questions as honest as possible, thus opening a channel for healthy heart-felt communication.

Getting married is already a stressful and life-changing event in our lives. Adding an HIV positive status or LGBTQ identity does not make it an easier journey for the couple. Optimistically, one day everyone will be able to adopt Elvis Presley’s words “When I get married, it’ll be no secret.”

Luis R. Alvarez works as a psychotherapist and bilingual medical social worker with the HIV/AIDS, LGBTQ, and Latino populations.

Jessica L. Oliva-Calderin is an immigration attorney and managing partner at Calderin & Oliva, PA. See more about Mrs. Oliva-Calderin and her work at http://www.calderinoliva.com/en/.

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