Gay and Trans Immigrants May Not Find a Reprieve in Obama’s Executive Action

President Barack Obama's executive action on immigration is expected to help some 5 million undocumented people remain in the United States, but legal advocates for LGBT immigrants say thousands will be left exposed to deportation.

The new legislation focuses heavily on keeping immigrant families together, specifically by allowing spouses, parents, children, and siblings of US residents to remain in the country with their citizen family members, as well as any immigrants who came here before they were 16 and before 2010.

But immigration experts and LGBT advocates say the legislation ignores factors such as gay marriage and gay adoption bans in some states in the US, as well as the fact that many immigrants who flee persecution for their gender or sexuality in their home countries come to the US at a later age than the executive action protects and don't have family ties.

Erwin De Leon, a research associate at the Metropolitan Housing and Communities Policy Center of the Urban Institute, said that one of the biggest challenges facing LGBT immigrants exists in states that don't recognize gay marriage and gay adoption, or in couples where one partner has not legally adopted the child. The new executive action will grant a reprieve to parents of children that were born in the US or have green cards. But for gay couples with a resident child, both parents many not qualify.

"In a lot of states, gay parents still cannot adopt a child, so it becomes an issue because of legal recognition of the parents, and particularly an issue for the parent that is not the biological parent,"he said.

If the other parent's status is not legally recognized by the state they're living in, that parent could be deported, he said.

But there are also other segments of the LGBT population that simply don't have the familial ties outlined in the executive action, many of whom came to the US to escape persecution for their sexuality or gender.

"Every year we get thousands of phone calls from folks who reach out to us for all different types of legal representation and advice," said Diego Ortiz, spokesman for Immigration Equality, a legal services nonprofit that offers help to asylum seekers, binational couples and families, detainees in detention centers, and undocumented LGBT immigrants. "Many have fled their countries of origin, where they have experienced abuse, or violence, or physical or psychological torture, and many times that means leaving behind their families so that they are here alone without mothers or fathers or siblings of any kind."

"So many LGBT individuals don't have formal familial ties to US citizens, and the reason for that is years and years of the US refusing to recognize LGBT families," he added.

According to estimates from the Williams Institute, there are about 267,000 LGBT undocumented immigrants in the US today. It is unclear how many of those individuals will be excluded from the president's executive orders, but De Leon estimated it was somewhere in the thousands.

The new legislation is also particularly tough on criminal infractions, which advocates say disproportionately affects gay and trans youth who may have had to turn to "survival crimes" such as prostitution or shoplifting.

"There is the issue of LGBTs who are forced into survival crimes, meaning prostitution, particularly a lot of homeless youth," De Leon said. "If you've got an undocumented youth who came here as child, and they were kicked out [of home] because they happen to be gay and there are no options but survival crimes, survival sex, and then that's on their record, so then what?"

Raffi Freedman-Gurspan, racial and economic justice initiative policy adviser at the National Center for Transgender Equality, said in a statement to VICE News that many transgender immigrants still face discrimination in their everyday lives in the US.

"The policy gives little leniency towards those with criminal records, including for minor crimes committed out of survival like jumping turnstiles, driving to work without a license, or sex work. Transgender undocumented immigrants are fighting both transphobia and job discrimination, and the president's executive actions fail to recognize that," she said.

A truly transgender-inclusive policy would have to grant leniency for a history of survival crimes, and would also need to expand the definition of family or else somehow take into account the experiences faced by transgender immigrants, Freedman-Gurspan said.

Both Ortiz and Freedman-Gurspan stressed that to deport this particular population of immigrants was dangerous to their welfare. Many have been persecuted in their home countries for being gay or transgender, and could face abuse if returned or if placed in US detention facilities, they said.