With an early election cycle underway, recent federal legislation efforts seeking to open immigration rights to same-sex couples and repeal the ban on HIV-positive immigrants, and with the 2009 Diversity Lottery application window set to open on Oct. 3, there is a flurry of debate around immigration – especially in San Diego, situated on the nation’s most heavily trafficked international border.

But for the GLBT community, the complex U.S. immigration system is exponentially compounded because same-sex couples are not recognized at the federal level as being a “family” – the foremost criteria for immigration. Immigration in the United States is first and foremost founded on the principle of family reunification. Our current immigration policies are based on the 1981 Congressional Immigration Commission’s policy, which posits, “Reunification of families serves the national interest not only through the humanness of the policy itself, but also through the promotion of the public order and well-being of the nation.”

In 2000, the U.S. Census estimated that there were at least 35,820 binational same-sex partnerships (where one partner is a U.S. citizen or permanent resident and the other a foreign national) in the nation. This represents at least 6 percent of all same-sex couples in the country.

There are essentially four main legal channels for these couples to gain permanent residency in the U.S. First, “family-sponsored immigration” allows a person to immigrate to the U.S. if they are a married spouse, parent, or unmarried child of a U.S. citizen. Second, “employment-based immigration” allows a person to immigrate if there is a demonstrated lack of U.S. workers for a particular position. (This generally refers to higher level positions, which require advanced education.) Third, the “diversity visa lottery” is available to immigrants from certain countries that have a low representation of immigrants to the U.S., such as Slovenia or Gabon. Finally, there is a category for “asylum,” which is available for those who fear persecution in their home countries and seek protection in the U.S.

Brandon and Daniel know the struggles binational couples face all too well. They have been together for nine years, and not a day passes that they don’t worry that what they have spent nearly a decade building together will be taken away in an instant, through the flick of the wrist of a bureaucratic stamp.

Brandon, a U.S. citizen, met Daniel, a Hong Kong-born Canadian citizen in 1999.

“At any time they can send me back,” says Daniel. “And that puts a strain on our relationship because of the uncertainty.”

Daniel works in an information technology department at a firm in San Diego, and is on a short-term work visa, which must be renewed annually. That process takes its toll, both financially and emotionally. The couple estimates that legal expenses alone will be between $3,000 to $5,000 this year.

The couple also incurs the expense of the need for Daniel to return to Canada every year to get a new visa, a process that often has unpleasant circumstances attached to it.

“It’s so random what documents an agent is going to ask for, and there’s no consistency,” Brandon says. “One day, you can have [a border] agent ask to see a particular kind of letter from your employer – ignoring the briefcase full of other documentation – and so you go back to the hotel, call the company, have them overnight you a letter and then you go back to that same border crossing. Only this time, you have a different agent who never even asks for that document. It’s so subjective.”

Beyond the bureaucratic issues, the process takes an emotional toll.

“One time, an airline agent was going to take away his visa, and we ended up in this huge fight about whether they had the right to do that,” David says. “And because we are not considered a couple, I can’t wait with him when we are in line at immigration. I can’t be there to support him when people are being rude or talking down to him.”

One solution that friends often suggest is that David and Brandon get married in Canada, since Brandon is a Canadian citizen and same-sex marriage is recognized in Canada.

“Actually, if we were to get married in Canada, that would cause an even greater problem for him, because it would affect the intent for his stay [in the U.S.],” Brandon explains. “Suddenly, instead of being a work visa, it would be viewed that he was really here with the intent to be with a spouse, which is something the U.S. doesn’t recognize for gay couples.”

Recently, David has started down a new path for legal status in the U.S., one in which the employer sponsors him for his job. This, too, comes with a heavy price and uncertainty.

“First, these visas are totally employer-based, so if I change to another company, the process has to start over,” David explains. “And the process takes about five years.”

And the one big catch, David explains, is that during this process he is not allowed to return to Canada and reenter the U.S.

“I won’t be able to visit my family back home in Canada at all for the next few years,” David says. “It’s horrible, really.”

Brandon and David are not alone.

With more than 35,000 binational same-sex couples living in the U.S., some politicians have stepped up to the plate. In February 2000, Congressmember Jerrold Nadler, D-N.Y., introduced the Uniting American Families Act, H.R. 3006 (UAFA), to the House of Representatives. In 2003, Senator Patrick Leahy, D-VT, introduced similar legislation to the Senate, arguing, “Our immigration laws treat gays and lesbians in committed relationships as second-class citizens and that needs to change. This bill would add America to the growing list of nations that extend immigration benefits to same-sex couples [See Global Models Sidebar]. It is the right thing to do.” Legislation is still pending.

Essentially, the UAFA would echo the guiding principle of family reunification as the core immigration policy by extending eligibility to same-sex foreign national partners of U.S. citizens and legal permanent residents by extending the definition of family to include same-sex couple households. Supporters have been quick to note that a permanent partnership as defined in this law is not marriage and would not affect the federal definition of marriage. The U.S. would, in effect, extend equality to same-sex couples in immigration without needing a federal same-sex civil union or marriage policy, similar to current policies in Israel and Brazil.

According to Human Rights Watch, “The UAFA would actually decrease marriage fraud by removing the reasons for foreign partners of U.S. citizens to enter into sham marriages – often exploitive and degrading – so that they can remain with their real partner in this country. It would discourage unlawful presence, and let people live open, honest lives. For otherwise law-abiding LGBT people running out of legal options, their relationship would no longer lead to choices no one should have to make.”

Same-sex couples face difficult choices – such as the choice Brenda and Marianna made two years ago after confronting a series of insurmountable immigration obstacles.

Marianna came to the U.S. from Belgium in 1997 as an au pair for a family in La Jolla. Brenda, a graphic designer, met Marianna at Pride that summer. It was love at first sight.

After the children Marianna cared for grew older, Marianna’s position in the household was no longer necessary. At the time, Marianna was in the U.S. under a J-visa [see Sidebar: Terminology], and, in 2005, Marianna was forced to return to Belgium. As part of the laws governing J-visa holders, a two-year waiting period was mandated until she could apply for another visa to work in or visit the U.S., and Brenda and Marianna faced the prospect that their eight-year relationship would either have to end or suffer a two-year long-distance status.

“How long do we wait to meet ‘the one’?” Brenda says. “And here I had met her, my Belgian delicacy, and my own government told me she had to leave, that our love of eight years wasn’t enough to keep her here, even though some straight couple that only met last week on the Internet could meet the government’s standard.”

What ensued was a painful and expensive year of Brenda shuttling between Brussels and San Diego.

“In the end, I guess I decided it was more important for me to be with [Marianna] than anything else,” Brenda says of her decision to move to Belgium.

What Brenda gave up was close contact with her family, her national identity and her $80,000-a-year job; she now makes less than half that freelancing in Brussels.

“I now carry a Belgian passport,” Brenda says. “Even though I was very angry with my country, it was still my country, and to have to give that away, to have to sort of denounce it, was very painful. I’m still getting used to saying ‘Brussels’ instead of ‘California’ when people ask where I’m from.”

As for the two ever returning to the U.S. to live, Brenda explains that unless policy radically changes, it is unlikely.

“You would think that [Marianne] wouldn’t need an employer-family to sponsor her, that it would be enough for me, as her true family, to sponsor her, but it just isn’t.”

In fact, in 1975, Richard Adams, a U.S. citizen tried to sponsor his Australian partner, Anthony Sullivan, for permanent residency. The couple lived together in Colorado. The November 24, 1975, letter from Immigration and Naturalization Service reads:

“Your visa petition…for classification of Anthony Corbett Sullivan as the spouse of a United States citizen [is] denied for the following reasons: You have failed to establish that a bona fide marital relationship can exist between two faggots.”

Brenda says little has changed.

“Do I think I would get that same letter today?” Brenda says. “You bet. You think we didn’t hear ‘lesbos’ and ‘dykes’ in our conversations? How can you doubt that I believe it would happen if I am willing to give up everything I know and have and go half way around the world?”

San Diego native Kevin never had the luxury of either weighing the pros and cons of nationality with his partner or petitioning the government, after a motorist on a cell phone struck and killed his partner, Juan, in the middle of an intersection.

“He was a bright and beautiful man who spoke English and Spanish, and was self-teaching himself Italian,” says Kevin. “I speak Italian, and it was one of the things that brought us together.”

After being struck, Juan was hospitalized with severe trauma. His outlook was bleak. The first obstacle Kevin met was that, fearing legal ramifications for having hired an undocumented worker, Juan’s employer was reluctant to come forward and confirm that Juan was, in fact, working for the organization.

“It’s a horrible system we have that forces perfectly wonderful people like [Juan] to live in these shadow economies,” Kevin says. “They’re our neighbors, for God’s sake, and look at the horrible way we treat them. It’s galling when people from other countries are devalued for no other reason than their birthplace. And [Juan] especially. He was so gifted, bright, and talented. But his career opportunities were very limited because of a lack of documents, a lack of a work permit. So he tended to get jobs that I think were way below him.”

Currently, there are both civil and criminal cases pending against the driver of the vehicle that struck and ultimately killed Juan. In the civil case, the monetary compensation will be calculated based on Juan’s earnings at the time of his death, as projected forward. But without employers who are willing to step forward, things do not look good for Juan’s family’s case.

“It’s so disturbing that somehow his life was worth less because he was undocumented,” Kevin says. “And unless the employers will step forward and admit to having employed him, that amount is even less for his family. This just smacks of discrimination. A life is a life, and to say that his was not a full life to be compensated as others would be simply because of some lacking document is very painful.”

Ultimately, Kevin hopes that his grieving process allows others to see that the system is in drastic need of change.

“Like so many of those who are here, he was an exceptional human being and deserves to be treated as such in his death,” Kevin says. “He was the love of my life, and he deserves a fair shake.”

Couples like David and Brandon, Brenda and Marianne, and Kevin and Juan find themselves trapped between two of our nation’s most volatile wedge issues: immigration and marriage equality.

Samual Toba is the president of the San Diego chapter of Immigration Equality, a national organization that works to end immigration discrimination against GLBT and HIV-positive people. Immigration Equality provides legal services, information, and support to immigrants, activists, attorneys, and legislators. San Diego’s chapter meets the first Monday of every month at First Unitarian Universalist Church in Mission Hills.

“The immigration laws are written with the end result of reunifying families,” Toba explains. “And until gays and lesbian couples are treated as families, we aren’t going to be written into that policy.”

Beyond family reunification, the U.S. also recognizes some systematic abuses and persecution that people experience in their own country that would allow them asylum here in the U.S.

Antonio came to the U.S. four years ago and was granted asylum from persecution he experienced in his home country of Columbia. However, Antonio did not receive asylum based on his sexual orientation.

“When I came to the U.S. the first time and explained that all the horrible things that were happening to me were happening to me because I was gay, which is really the true reason why they were happening to me,” Antonio says, “I was told it didn’t meet the standards. I wasn’t allowed to stay. They sent me back to Columbia. I made my way to the U.S. twice more. The third time, I told them all these things were happening to me because I refused to participate in things the government wanted me to participate in. Suddenly, I stopped being some fag who deserved what I got and started being the victim I really was.”

In fact, Toba says, that’s part of the problem with the way the asylum laws are written into our immigration law.

“The biggest issue is that people have to recount things that have happened to them, things you would much rather forget for anywhere from four to 10 years while asylum is being granted,” Toba explains.

Just the process of seeking asylum is difficult because in order to qualify for asylum you must be physically present in the U.S. or at an airport or border crossing of the U.S. You must prove that you either cannot or will not return to your country because you have a “well founded fear of persecution” based on race, religion, nationality, political opinion, or membership of a particular group (such as GLBT or HIV-positive people). If a person seeking asylum has entered the U.S. illegally, they have just one year to apply.

The documentation, Antonio says, is a nightmare.

“Witnesses, expert data and research, all of that just to say, ‘Why can’t you take an X-ray and see all the broken bones from being beaten?’” Antonio says.

And sometimes, it isn’t enough to explain that you have intense fear of persecution based on sexual orientation.

“The first time I told them it was because I was gay, and the agent said, ‘You don’t look gay to me,’” Antonio recalls. “He finally told me that I seemed okay enough to be able to hide being gay, and so he denied my asylum and I was returned to Columbia. The second time, I figured I just needed to tell him more horrible stuff. But the third time, I went back to the truth of what happened, and just changed the why. It made all the difference.”

Toba explains that Antonio’s case is not unique.

“It’s not unusual for someone to be told they are not effeminate enough,” Toba says. “It all depends on the individual immigration officer.”

That, Toba argues, is why we need explicit, consistent immigration law.

As for ever stepping foot on Columbian soil again, Antonio knows it can’t happen.

“If I go back to Columbia, then my visa is taken away because they say that if I feel okay enough to return to Columbia, then I no longer fear persecution,” Antonio explains. “I can’t go to my sister’s wedding, my mother’s funeral, or to see my niece blow out candles for her birthday.”

As long as GLBT and HIV-positive individuals are trapped between the two cultural juggernauts of immigration and marriage equality, there can be little hope for the future, says Toba.

But perhaps with the help of Toba, organizations like Immigration Equality, and political allies such as Leahy, Lee, and Nadler – along with the more than 100 co-sponsors to bills such as UAFA – there’s hope that, one day, we won’t have to choose between our country and our family.