Immigration and LGBTs: The Allies

Before 2013, my green card experience, insofar as it affected me directly, had been limited to a vague memory of a 1990 movie. I've found that a vague memory of Andie MacDowell's acting usually serves me best.

Binational couple immigration has been a topic covered in The Advocate for quite some time. Since the advent of marriage equality in Massachusetts, as queer people we'd collectively been aware of the lack of federal rights our marriages granted us. But when key parts of the Defense of Marriage Act were struck down by the Supreme Court, I knew I could marry my fiance, who moved from Vienna to the United States so we could be together. We'd have a legal basis for him to become a permanent resident. The federal government would view us as family.

After getting hitched, my husband ("the foreign national") and I ("the citizen") were instantly made aware of how many friends were also in binational marriages. And they all had lots of advice on how to handle our immigration needs.

It was Travis Pagel and Marcos Cipriano Da Silva, an American-Brazilian couple married just before DOMA was struck down, who told us they'd had great results with a pair of attorneys with law offices in Philadelphia and New York. "Plus they're so cute you just want to put them in your pocket," Pagel said. As recommendations go, is there higher praise? We made an appointment to see them.

Alex Brophy, a graduate of University of Miami School of Law and an associate at the well-regarded law firm Arnold & Porter LLP, met Kate Lenahan when she was a second year law student at Brooklyn Law School. Though she didn't get the job she'd been interviewing for at Brophy's firm, the two hit it off.

Upon graduation, Lenahan joined Milbank, Tweed, Hadley & McCloy LLP, and was placed by Milbank as a full-time Legal Fellow at Immigration Equality, the only national organization providing free legal services for LGBT and HIV-positive people in the immigration system. Her first two cases were asylum-seekers: a gay man from Cameroon who had been beaten by the police, and a lesbian who feared persecution from the antigay attitudes and laws her home country, Jamaica.

Brophy was working long hours doing commercial litigation, which he says, "is essentially big corporations suing other big corporations, or shareholders suing a corporation." Lenahan had been inspired by her pro bono work, by the direct client contact and positive effect she could have in asylum cases.

On the last day of their honeymoon in the Bahamas in 2010, the couple decided to hang out their own shingle, as Brophy & Lenahan PC. She would bring in immigration cases, and Brophy would handle litigation in their general-purpose law firm. That idea was quickly reshaped by their first cases, including their victory in the asylum case for a transgender woman from Jamaica. More asylum-seekers followed.

"If you're from Jamaica, Russia, or West Africa, and you can prove you're gay, asylum is worth looking into as an immigration option," Brophy says of some countries or regions flagged by the U.S. Citizenship and Immigration Services as dangerous for LGBT people. "The Middle East isn't great either," Lenahan adds.

They filed their first binational couple immigration case just a week and a half after the Supreme Court struck down DOMA in June 2013. Since then, they have handled many immigration cases, including a successful green card petition for my husband.

Sitting in their offices on Broadway in Times Square, I asked whether any clients wonder why a straight married couple has adopted LGBT immigration law and civil rights as their focus.

"I'm surprised more people don't ask us that," Lenahan says. She always explains her legal background and interests when talking to prospective clients, and it's not an issue for most.

"We don't say specifically on our site that we're married, but it's the first thing we tell people, that's it's me and Kate, no paralegal, and we do all the work ourselves," Brophy says. "I've had a client say they like having advocates who are not LGBT. To affect change you need people of the group trying to change the laws, and allies who are outside. It's great to be allies."

A quick look at the immigration paperwork involved made it clear to the foreign national and to me that, though legally possible, we couldn't handle the complexity of the green card application ourselves. We definitely needed legal help.

After hiring their firm, Lenahan alerted us to an issue in our application -- our honeymoon outside the United States. It's inadvisable to apply within 60 days of re-entering the country, so we delayed our application for a couple of months. We encountered another hiccup when USCIS asked for more information about my income -- USCIS apparently read my supplied information incorrectly. I'm convinced that a letter from their firm resolved the matter much faster than anything we could have done alone.

"If you're not a lawyer, there may be issues in your case you're not aware of," she says. "Would you have known you shouldn't apply right after coming back into the country? I talk to people who think their cases are totally easy, but I'm like, 'Whoa, you need an attorney.' "

Immigration officers have had training in how to handle same-sex applications, and our attorneys haven't seen a difference in the rate of approval between gay and straight couples. Still, gay and lesbian couple applications are often very different.

"The thing that's most challenging is submitting documentary evidence of a relationship to officers who have been used to adjudicating opposite sex couples, where for most cases they're completely known to friends and family and employers and they've been building evidence of the relationship," Brophy says. That evidence can include photographs together, having met each other's families, sharing employer-based health insurance, or both names appearing on a lease.

"There are many same-sex couples who are out to everybody, and those are the easiest to work with," Brophy says. Then there are other cases, in which evidence is less typical -- if one or both spouses isn't out to family or at work, or even cases in which a citizen has had a previous opposite-sex marriage. "People might be bisexual, or had an arranged marriage in the past, or were trying to satisfy friends or family with a marriage," Brophy says. "There are a million different reasons why that might occur," reasons that might send up the antennae of an immigration official looking for fraud.

"It would make me so angry to hear about the inequalities and injustice [facing LGBT immigrants]. What must it be like for someone who it actually affects? It's great to be involved in something that's a current civil rights matter, to play a role in it, and do something positive with it. I think that's really neat, and I'm happy we can do that," she says, without a hint of grandstanding.

"Lawyers will try to talk you out of going to law school," Lenahan says.

"My dad did," Brophy interjects.

"Mine did, too," Lenahan says. "He would say, 'You're always dealing with someone's problems.' But I don't think it's true. It's not like you had a problem," she says, referring to our immigration needs. "You just needed help with something. When you're able to help them, people are very happy, so I think it's a nice thing. I know it sounds corny, but as far as affecting change and helping people -- this is a good way to do that."