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The unique plight of unauthorized LGBT immigrants

A protestor speaks out against anti-LGBT violence in Mexico.
A protestor speaks out against anti-LGBT violence in Mexico.
Alfredo Estrella / AFP via Getty Images

Last year, Alfonso Moreno-Gonzales was living as an openly gay man in the US. Today, Moreno, a 32-year-old from Mexico, keeps his sexual orientation a secret out of fear for his life — simply because he was deported back to Mexico.

"You can't express yourself the way you are" in Mexico, Moreno said. "If you are just walking in the street, it can be dangerous for your health."

President Barack Obama on Thursday announced executive actions protecting an additional 4.3 million unauthorized immigrants from deportation. But the order leaves out 6 million immigrants — and for the LGBT population among the unprotected, the threat of deportation can pose an actual threat to their lives.

Moreno fled Mexico out of fear for his life

Mexico LGBT

Demonstrators protest against anti-LGBT violence in Mexico. (Alfredo Estrella / AFP via Getty Images)

Moreno and Brian Hoffman, a US citizen and Moreno's partner of four years, described the situation in Mexico as very dangerous for LGBT people. Once, a group of male students at Moreno's school repeatedly slammed his testicles against a signpost while taunting him with anti-gay slurs. The attack left Moreno unable to move and crying in pain for hours. And it was only one of many anti-gay attacks, including a failed kidnapping, that Moreno said he faced on an almost daily basis in Mexico. Some of these incidents left him bruised and terrified for his life.

"If you walk in some areas, you put yourself in danger just because you are gay," Moreno said. "So I found a way to come [to the US]."

Moreno said he was "ignorant" of how to enter the US legally, so he decided to come without legal authorization. "My thought was just the rich people or people with influence can get a visa or permit to come," he said. "I was neither."

But in November 2013, Moreno was detained. In October of this year, an appeal to remain in the country failed. The decision left Moreno with two options: go back to Mexico or remain in detention while continuing to fight the case. After nearly a year in jail, the former seemed like the better option.

"Alfonso decided that he would rather go back to Mexico, despite the danger he faces there, than spend possibly an additional year in a jail where he was not allowed outside and hadn't even seen a piece of fruit in months," Hoffman wrote in an email. "I can't say I blame him."

Moreno arrived without official authorization in 2004 in Columbus, Ohio, where he worked multiple jobs in car washes, housekeeping, and restaurants over nine years. He's been deported twice.

The first time, in 2009, he was caught drinking and driving and subsequently sent back to Mexico, where he remained for a few months before returning to the US — again, without authorization. Court documents say he attended alcohol counseling and hasn't driven or had access to a car since 2008.

The second time, this past year, a police officer tried to stop Moreno for public urination. Knowing he couldn't produce documentation, Moreno attempted to run, which later led to a conviction for obstructing official business, and he was subsequently detained as an unauthorized immigrant. Moreno acknowledged the mistake, but he and his attorney, in court filings, pointed out he never put anyone else at risk.

As Moreno fought deportation the second time, he was held for nearly 11 months. During this time, he never saw the sun. He wasn't told how long a ruling would take on his case. And he was kept away from his partner during their anniversary, birthdays, and other major life events. When Moreno finally made it back to Mexico and visited a dentist, the orthodontist found 14 cavities and warned that Moreno could have lost his teeth — a sign of the inadequate health care Moreno received in jail.

"People here don't really care about how you handle it or if you are sick," Moreno told me in October, while he was still in detention. "After 10 months, the only thing I want is to be released."

Hoffman, who's an immigration attorney, views the terrible detention conditions as a tactic to get immigrants to drop their appeals. "[Moreno's case] is evidence that the government uses detention of immigrants as a weapon to compel them to give up their potentially meritorious cases and leave the country," Hoffman wrote.

But as Hoffman explained, Moreno's situation remains bad. Hoffman said the group Moreno traveled with back to his parents' home was robbed twice — once by supposed currency exchange agents, and then by masked men who boarded the bus they were on. Since he can't be open about his sexual orientation — even his parents disapprove, although they know about it — Moreno feels like he's trapped in his room.

"He was in jail for almost 11 months in the US, and now he's basically in jail in his room in his parents' house," Hoffman said. "He's afraid to go outside. And he doesn't have money to go out."

Moreno couldn't qualify for deportation protections

President Obama

President Obama presides over a naturalization ceremony for active duty service members and civilians. (Getty Images News)

Moreno likely wouldn't qualify for Obama's executive actions on immigration. He didn't enter the country before he was 16, as required by Deferred Action for Childhood Arrivals. And he isn't the parent of a legal citizen, as required by Obama's latest action. But even if he met one of those requirements, the deportation orders bar him from reentering the US for 10 years, and his criminal convictions — for drinking and driving — would likely disqualify him. (Still, people like Moreno are de-prioritized for deportation under Obama's new order.)

There is a chance Moreno could qualify for asylum if he can prove he's part of a persecuted social group. But the immigration judge who heard Moreno's case said his situation amounted to "discrimination and harassment," not "persecution." The judge also argued circumstances in Mexico have improved for LGBT individuals since Moreno lived there.

In these cases, whether someone is granted protection can come down to a strong legal defense, a sympathetic judge, and knowledge of the protections that are available — three things that aren't always accessible to unauthorized immigrants living in the shadows.

The circumstances of Moreno's case, Hoffman argued, show that broader immigration reform is necessary, particularly for LGBT immigrants who see deportation as a threat to their lives. "It's such a hugely overlooked problem," he said. "At some point there's got to be relief for this community."

Hundreds of thousands of LGBT immigrants face similar threats

LGBT immigrants

LGBT immigrants demonstrate for immigration reform. (Saul Loeb / AFP via Getty Images)

The US is far from a perfect country when it comes to LGBT rights, but it fares better than most of the world — more than two-thirds of states allow same-sex marriages, and most Americans agree homosexuality is either morally acceptable or not a moral issue.

At least 267,000 unauthorized immigrants identify as LGBT, according to the Center for American Progress. Many of them fear deportation not just because it would cost them their jobs and being with their families, but also because it could send them back to a country where LGBT people are treated with outright discrimination and threats of violence.

Part of the problem for LGBT advocates is that so much immigration policy, including the president's executive action, is based on biological or legal ties to a son, daughter, or parent. But LGBT parents face unique hurdles in that respect. For one, same-sex couples are less likely to have children on their own. And in many states, same-sex adoptions are restricted so only one person in a same-sex couple — even a legally married one — can have legal ties to an adopted child, which leaves one of the parents open to deportation even if their child is a legal resident.

"The president's choice to require formal familial ties to qualifying citizens and lawful permanent residents appears to exclude LGBT immigrants from accessing legal protections," Aaron Morris, legal director of Immigration Equality, said in an emailed statement. "Our priority moving forward is to ensure that immigration law recognizes LGBT families and protects LGBT immigrants from deportation to homophobic and transphobic countries."

Another issue for LGBT immigrants is workplace discrimination. In 29 states, it's still legal for an employer to fire someone just because of his or her sexual orientation or gender identity. That can make it much harder for LGBT immigrants to keep a job, which is often a requirement for legal status or deportation protections.

Immigration policy "needs to take into account the unique barriers that LGBT people are facing trying to obtain and keep employment," said Maya Rupert, policy director at the National Center for Lesbian Rights. "People facing discrimination should not be penalized."

Rupert said she's hopeful that the president's executive actions will be implemented with the flexibility to overcome of these issues. But the ultimate solution, she said, is to offer a path to legal status for unauthorized immigrants. That would secure many people's place in the US, even if they don't meet other legal requirements.

"What the president laid out yesterday was fantastic as a first step," Rupert said. "But I don't think anyone has any illusion that this is enough. We need comprehensive immigration reform — and that has to happen legislatively."

Opponents, particularly Republicans, argue that amnesty essentially rewards people for entering the country illegally — and they worry that such a move could encourage even more people to enter the country without authorization, since it could minimize the threat of deportation for unauthorized immigrants.

LGBT immigrants and advocates don't deny the mistakes made or the broken laws. The question is whether those errors should put the lives of potentially hundreds of thousands of people at risk.

Given the dire situation in Mexico, Moreno and Hoffman plan to discuss their next steps this coming Christmas.

"I was thinking of going to Canada and applying for a visa there," Moreno said. "Somewhere else, but not Mexico."