The Asylumist

The Daily Mail reports that a “pair of Pakistani women have made history as the first Muslim lesbian couple to get married” in the United Kingdom:

The couple could not find an Imam to marry them or, apparently, a decent wedding photographer (focus!).

Rehana Kausar, 34, and Sobia Kamar, 29, made history when they tied the knot in a register office civil ceremony, then immediately applied for political asylum after they were wed, claiming their lives would be in danger if they returned to their native country.

The pair, from the Lahore and Mirpur regions of Pakistan, said they had received death threats from opponents in Pakistan – where homosexual acts are illegal and considered against Islam. And since news of their wedding earlier this month spread, the pair claimed they had even received death threats from the UK.

The couple was not married in an Islamic ceremony because they could not find an Imam in Britain willing to marry them.

Pakistan has become a fairly violent and lawless society, and–given this couple’s visibility and the death threats they have received–I suspect that their asylum claim will have a high probability of success.

A quick review of reader comments about the Daily Mail article shows that people’s main concern is that the women’s case will open the floodgates, and that anyone claiming to be gay will be able to obtain asylum in the UK (just so you know, my summary of the reader comments is more polite than the actual comments). I am not so sure that this concern is justified.

For one thing, the situation in Pakistan is not as bad as you might imagine for many LGBT people. The New York Times reported on this issue last year:

Homosexual acts remain illegal in Pakistan, based on laws constructed by the British during colonial rule. No civil rights legislation exists to protect gays and lesbians from discrimination.

But the reality is far more complex, more akin to “don’t ask don’t tell” than a state-sponsored witch hunt. For a long time, the state’s willful blindness has provided space enough for gays and lesbians. They socialize, organize, date and even live together as couples, though discreetly….

[W]hile the notion of homosexuality may be taboo, homosocial, and even homosexual, behavior is common enough. Pakistani society is sharply segregated on gender lines, with taboos about extramarital sex that make it almost harder to conduct a secret heterosexual romance than a homosexual one.

Now that the marriage of Rehana Kausar and Sobia Kamar is so public, they do not have the option of being discrete. Other same-sex couples might not be so visible, and therefore would be less likely to qualify for asylum (many LGBT cases have been denied by the UK because the asylum seekers cannot demonstrate visibility or cannot submit sufficient proof to demonstrate that they are gay).

Also, most same-sex couples will probably not face death threats. And if they do face threats, the threats will most likely come from family members. To win asylum under those circumstances, they would need to show that the government is unable and unwilling to protect them and that they cannot safely relocate within the country.

Finally, while this couple was the first Muslim lesbian couple to wed in the UK, there is nothing new about LGBT people seeking asylum. I have represented many such people in the U.S. and, with one exception (from Fiji), they all received asylum. If the floodgates were going to open for LGBT asylum seekers, it would have happened a long time ago. This most recent case is (unfortunately) just one of many where an LGBT individual will be harmed if she returns to her country.

While the case of Rehana Kausar and Sobia Kamar is significant because it is a “first,” I don’t see how it is significant in terms of developing the law for LGBT asylum seekers. Given what I know of the situation in Pakistan, my guess is that this couple faces a significant threat of harm or death. I hope the UK will see fit to grant their application for protection.

I recently met a gay man from Africa who has lived in the United States with his U.S.-citizen partner for many years. The two men started a successful business and are pillars of their community. But because they are a same-sex couple, the U.S. citizen cannot sponsor his partner for lawful permanent residence in the United States, and now they face imminent separation. This is a problem for approximately 36,000 gay and lesbian bi-national couples (many of these couples have children), and it is probably one of the most insidious effects of the ironically-named Defense of Marriage Act (“DOMA”).

The Defense of Marriage Act: DOMAnd Dumber.

Last week, a federal appeals court struck a blow against DOMA. The U.S. Court of Appeals for the First Circuit found that a provision of the DOMA related to federal tax benefits for married same-sex couples was unconstitutional. However, the First Circuit said “its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules” on the matter. Given the current make up of the Supreme Court, it seems unlikely that the law will be struck down anytime soon. We will have to wait and see.

In the mean time, there is something President Obama, Eric Holder, and Janet Nepolitano can do now to help same-sex bi-national couples: grant asylum to the foreign partner.

If social conservatives can define “marriage” as a union between a man and a woman, why can’t progressives define “persecution” as the forced separation of same-sex couples due to immigration restrictions. When the foreign-born partner demonstrates a well-founded fear of persecution on this basis, he should be granted asylum.

Although this definition of “persecution” stretches the normal meaning of the term, there is precedent for such a move. For example, the Cuban Adjustment Act basically declares that anyone who escapes from Cuba is a refugee, eligible to remain permanently in the U.S. Also, people who fear coercive family planning in China are eligible for asylum. For the most part, people from these two groups would not meet the requirements for asylum, but because Congress has created special categories, they are eligible for relief.

While the rules for China and Cuba are laws passed by Congress, the Executive Branch has acted unilaterally to expand the definition of who qualifies for asylum. In 1996 the DOJ held that victims of female genital mutilation were eligible for asylum. See Matter of Kasinga, Int. Dec. 3278 (BIA 1996). More recently, DHS determined that domestic violence could form the basis for asylum.

The Obama Administration has shown it can come up with creative solutions to difficult immigration problems. Witness the new regulations on waivers. Previously, an alien present in the U.S. who is ineligible to adjust status had to leave the United States and apply for a waiver. This often meant a long separation from family members while the waiver was processed. Starting in January 2013, such aliens can apply for a waiver in the United States and–if the waiver is approved–they can obtain lawful status with only a brief stay overseas.

President Obama has already concluded that the relevant portion of DOMA is unconstitutional and has refused to defend the law in court. So why not do something for the thousands of same-sex couples faced with forced separation? Janet Nepolitano of DHS and Eric Holder at DOJ could agree that separating married same-sex couples is tantamount to persecution, and they could grant asylum to the foreign partners. If DOMA is repealed or overturned, the government could re-visit this definition of persecution. But as long as this mean-spirited law remains on the books, the Obama Administration should do everything within its power to mitigate the harm. We should grant asylum to gay and lesbian spouses of U.S. citizens.

First Muslim Lesbian Couple to Wed in UK Seeks Asylum

Want to Help Gay Couples with Immigration? Give Them Asylum