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Gay ‘Dreamer’ stuck in Mexico after green card application denied

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Israel Serrato holds a picture of him and his husband, Marco Villada Garibay. The two men have filed a federal lawsuit after Villada was prevented from returning to the U.S. from Mexico after he traveled to the U.S. Consulate in Ciudad Juárez to apply for a green card. (Photo courtesy of National Immigration Law Center)

Lawyers representing a gay married “Dreamer” who was denied a green card have filed a federal lawsuit that seeks his return to the U.S.

The lawsuit — which was filed in the U.S. District Court for the Central District of California on Tuesday — notes Marco Villada Garibay came to the U.S. from Mexico when he was 6 years old. The lawsuit states Villada graduated from Morningside High School in Inglewood, Calif., and later enrolled at El Camino Community College and Harbor College in Los Angeles.

“Mr. Villada Garibay has spent virtually his entire life in the United States,” reads the lawsuit.

Villada in 2013 became a recipient of the Deferred Action for Childhood Arrivals (DACA) program that allows young undocumented immigrants to remain in the U.S. and obtain work permits. Villada in 2014 married Israel Serrato after the U.S. Supreme Court struck down a portion of the Defense of Marriage Act and dismissed an appeal of a ruling against California’s Proposition 8.

The lawsuit states the couple subsequently filed “the necessary petition and obtained a provisional waiver” from the U.S. Citizenship and Immigration Service that would allow Villada to obtain his green card “by virtue of his marriage to a U.S. citizen.” The couple on Jan. 14 traveled to Mexico in order “to take the next step in (Villada)’s process to obtain U.S. residency,” which was his appointment at the U.S. Consulate in Ciudad Juárez.

Villada had been able to legally work in the U.S. and was protected from deportation under DACA until 2019, but the lawsuit notes his “status was automatically terminated” once he left the country.

The lawsuit notes Villada traveled to Mexico “only because” the USCIS approved the provisional waiver that allowed him to apply for a green card through the State Department in his country of origin and promptly return to the U.S. with Serrato.

The consulate on Jan. 17 denied Villada’s application and banned him from returning to the U.S. “because it found that he was permanently inadmissible” on the grounds that he left the U.S. more than a year after he entered the country without documents and returned to the U.S. “without admission after more than one year of unlawful presence.”

The lawsuit notes Villada in 2000 returned to Mexico for “a few weeks” after his grandfather died. Villada, who was 17-years-old at the time, was allowed back into the U.S. after he showed his high school ID card to an immigration officer at the San Ysidro border crossing south of San Diego.

The lawsuit states Villada disclosed during his green card interview that he had traveled to Mexico in 2000. The consulate earlier this month affirmed its decision to deny Villada’s application.

“Mr. Villada Garibay and Mr. Serrato continue to be separated because Mr. Villada Garibay is unable to return to the United States,” reads the lawsuit. “As a result, they are suffering emotionally and financially, and are experiencing great anxiety because Mr. Villada Garibay is unable to return to the United States for at least 10 years. The threat of prolonged separation impairs Mr. Villada Garibay’s and Mr. Serrato’s ability to live together as a married couple, form a family and plan for the future.”

The National Immigration Law Center, an immigration advocacy group that is representing Villada and Serrato in their lawsuit, on Tuesday held a conference call with reporters.

Villada said he and Serrato “did everything by the books.”

“Right now all I can think about is going back home,” said Villada. “I miss my husband, my home, family.”

Villada told the Washington Blade he traveled to Mexico’s Jalisco state from Ciudad Juárez after his husband returned to California. Villada said in response to a question about whether he feels safe as an openly gay man that he is “in constant fear of even going down the street for a soda.”

“I’m still living in fear, even right now,” he told the Blade. “It is not a place that is safe, even in my eyes.”

Serrato told reporters he met Villada before he became a DACA recipient.

“I loved my husband before he had DACA,” said Serrato. “I love my husband as a documented person. I’m going to fight for my husband and I to be together.”

The lawsuit names Acting Secretary of State John Sullivan, the USCIS, USCIS Director L. Francis Cissna, USCIS National Benefits Center Director Robert Cowan and U.S. Consul General for Ciudad Juárez Daria L. Darnell as defendants in their official capacities.

The State Department on Tuesday declined to comment on the lawsuit.

‘Immigrant rights are an LGBTQ issue’

The lawsuit was filed against the backdrop of mounting concern over the Trump administration’s immigration policy.

DACA’s future remains uncertain after President Trump last September announced it would end the program. The Trump administration’s announcement in January that Salvadorans will no longer receive protected immigration status in the U.S. through the Temporary Protected Status program sparked further outrage.

“Our anti-LGBT immigration policy just doesn’t hurt immigrants,” National Immigration Law Center Executive Director Marielena Hincapié told reporters during the conference call. “It hurts all of us.”

Immigrants rights advocates gather in front of the White House on Jan. 8, 2018, to protest President Trump’s decision to end the Temporary Protected Status program for Salvadorans. (Washington Blade photo by Michael K. Lavers)

Stacy Tolchin — one of the attorneys who is representing Villada and Serrato — said there were cases of immigrants during the Obama administration who were denied green cards, even though they had received provisional waivers from USCIS that allowed them to leave the U.S. in order to apply for them in their countries of origin. Crissel Rodríguez of the California Immigrant Youth Justice Alliance told reporters that Villada’s case “is an example of how the Trump administration’s policy continues to tear families apart.”

“Immigrant rights are an LGBTQ issue,” added Human Rights Campaign Legal Director Sarah Warbelow.

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Anti-LGBTQ Colorado baker loses Trans birthday cake court case

Phillips violated Colorado’s ant-discrimination law citing the fact that at issue was a ‘product’ not freedom of speech or expression

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Screenshot via CBSN Denver

DENVER – A Colorado State District Court Judge ruled against the baker who had previously refused to bake a cake for a same-sex wedding and won at the U.S. Supreme Court a partial narrow victory in that case in 2018.

CBSN Denver reported that Denver District Judge A. Bruce Jones order that Jack Phillips violated Colorado’s anti discrimination law Tuesday citing the fact that at issue was a ‘product’ not freedom of speech or expression.

In court documents, Jones said that Phillips refusal to make the plantiff, Autumn Scardina a cake made with blue icing on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status but without a written message, was in violation of the law. Phillips was ordered to pay a $500 fine.

Jones noted in his ruling that Phillips testified during a trial in March that ‘he did not think someone could change their gender’ and he would not celebrate “somebody who thinks that they can.”

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others,‘” the judge wrote.

The Scottsdale, Arizona based Alliance Defending Freedom, an anti-LGBTQ legal group that has been place on the Southern Poverty Law Center’s Hate Watch List for spreading propaganda and lies about LGBTQ people, told CBSN that the group would appeal Jones’ ruling.

“Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” ADF’s general counsel, Kristen Waggoner, said in a media statement.

The maximum fine for each violation of Colorado’s Anti-Discrimination Act is $500. But it was not clear from the ruling if the fine was for the two attempts that Scardina made to order the cake or just one.

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Supreme Court rules for religious agency rejecting LGBTQ families

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city

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Blade file photo by Michael Key

WASHINGTON – In a ruling released Thursday, the U.S. Supreme Court ruled decided in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, determining the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.

In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.

Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.

Marianne Duddy-Burke, executive director of the Catholic LGBTQ group DignityUSA, condemned the decision in a statement immediately after it was handed down.

“Today, the well-being of our country’s most vulnerable children has been sacrificed to preserve tax-payer funded discrimination for a powerful group of religious institutions,” Duddy-Burke said. “The Supreme Court just decreased the number of homes available to our youth in foster care, making what was already a crisis worse. Same-sex couples are seven times more likely than straight couples to adopt or be foster parents and are more likely to have trans-racial families. This ruling means tens of thousands of children may never have a family to love and support them.”

The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.

“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”

David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.

“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”

Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”

“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.” 

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U.S. Senate to consider apology for past anti-LGBTQ discrimination

Report shows 70-year history of gov’t persecution, purges of ‘sex deviates’

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Pioneering activist Frank Kameny, who was fired from his government job for being gay, received an apology from the government decades later, but that apology did not extend to the thousands of other LGBT Americans persecuted by their government. (Blade file photo by Michael Key)

WASHINGTON – U.S. Sens. Tammy Baldwin (D-Wisc.) and Tim Kaine (D-Va.) are preparing to introduce a first-ever resolution calling on the Senate to acknowledge and apologize for the federal government’s discrimination against LGBTQ federal workers and members of the military over a period of at least 70 years.

The two senators have agreed to introduce the proposed resolution at the request of the Mattachine Society of Washington, D.C., an LGBTQ group that specializes in archival research into the federal government’s decades-long policy of banning LGBTQ people from working in federal jobs and serving in the U.S. military and purging them when found to be in those positions.

The Mattachine Society, in partnership with the international law firm McDermott Will & Emery, prepared a 28-page white paper reporting in extensive detail the U.S. government’s history of what it calls discrimination and persecution of LGBTQ federal workers and LGBTQ military service members.
The white paper is entitled, “America’s Promise of Reconciliation and Redemption: The Need for an Official Acknowledgement and Apology for the Historic Government Assault on LGBT Federal Employees and Military Personnel.”

In a statement, the Mattachine Society says the paper is the product of a two-year research project involving a team of five attorneys with the McDermott Will & Emery firm and Mattachine Society.

“Over many decades, the United States government, led by teams within the Federal Bureau of Investigation (FBI), the Office of Personnel Management (OPM), and nearly every agency and branch of government, began the process of investigating, harassing, interrogating, court-martialing, terminating, hospitalizing, and, in some cases, criminally prosecuting LGBT Americans for no other reason than their sexual orientation or gender expression,” the paper says.

“This wholesale purging left tens of thousands in financial ruin, without jobs, with personal lives destroyed, and, in many cases, completely estranged from their own families,” the paper states.

“A straightforward acknowledgement of the mistreatment of these military and civilian employees and an official apology is overdue,” the paper continues. “Both the Congress and the Executive Branch were complicit in this pervasive mistreatment of LGBT citizens.”

The paper points out that over the past 30 years Congress has officially acknowledged and apologized on six different occasions for U.S. mistreatment of other marginalized groups.

Among the subject areas of those apologies were the enslavement of African Americans, the failure to enforce anti-lynching laws to protect African Americans, the internment of Japanese Americans during World War II, the mistreatment of Native Hawaiians, the mistreatment of Native Americans, and government polices of exclusion of Chinese immigrants.

The paper says the time has come for the federal government to issue its own “acknowledgement and apology” to the LGBT community by following the precedent established by Congress with respect to apologies to the other marginalized groups.

Jeff Trammell, a Mattachine Society board member who led the project to prepare the white paper, said Baldwin and Kaine were in the process of lining up other senators to sign on as co-sponsors of the resolution.

Baldwin is the Senate’s only out lesbian member. Kaine is a longtime supporter of LGBTQ rights.
Trammell said Mattachine of Washington considers the Senate resolution the first step in an ongoing effort to obtain a similar resolution in the U.S. House of Representatives and a possible similar statement of acknowledgement and apology from the executive branch, including the Biden administration.

He said he and the resolution’s supporters were hopeful that most senators, including Republicans, would view it as non-controversial and as a nonpartisan measure because it seeks only the acknowledgement of historical facts. Trammell noted that unlike other resolutions of apology pertaining to other minorities approved by Congress in the past, the LGBT apology resolution does not call for any financial reparations.

The eight-page proposed resolution addresses that question by stating, “Nothing in this resolution…authorizes or supports any claim against the United States or serves as a settlement of any claim against the United States.”

Trammell noted that under the Obama administration, John Berry, the director of the U.S. Office of Personnel Management, issued an official government apology for the firing of D.C. gay rights pioneer Frank Kameny from his government job in the late 1950s. But Trammell said the apology to Kameny, which was considered important and groundbreaking, did not extend to the thousands of other LGBTQ employees fired or harassed in the years before and after Kameny’s firing.

The white paper also points out that at least seven U.S. allied nations have issued apologies for past mistreatment of their own LGBTQ citizens. Among them are Spain, Canada, United Kingdom, Australia, Germany, Brazil, and The Netherlands.

“We believe the time has come to understand and acknowledge the historical animus that LGBT federal employees and military personnel faced for generations from their own government to ensure it can never happen again,” Trammell said.

The white paper can be accessed here.

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