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LGBT Legal Quagmire: Locked Out of U.S. After Forced Divorce in Order to Adopt in Thailand

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Family photo of Trish and Weo
Patricia R,

Trish and Weo fmaily photo before pandemic halted the immigration process

I am a transgender woman who was in a same-sex marriage in Thailand. I was forced to divorce in order to adopt my daughter. Then, as we anxiously waited for the right to immigrate to the U.S., the pandemic halted the immigration process.

It was in April of 2019, I was stewing silently as I sat in front of the district office clerk waiting for him to finish the divorce papers. Every one of his keystrokes was slow and deliberate. How a government official who toiled daily in front of a computer screen still had to use index fingers to type was mind boggling. My wife implored me to be patient and I just let her do the talking. If we made a scene, the Thai official had every right to deny the adoption of my daughter. We were relying on the whims of a government official.

Three years before, my wife and I had enthusiastically decided upon adopting our niece. The whole extended family gave us their blessings. All was good until the day in November 2018 when I entered one of these district offices in Bangkok ready to finalize the adoption and was rejected. For the next five months, my wife and I navigated through the legal quagmire of the Thai bureaucracy, attempting to maneuver around the inevitable. We consulted with three lawyers, but the outcome was unavoidable. In the end, an official letter from the Provincial Administrative Office came, dictating that divorce was the only way forward.

Fortunately, my fears of having the adoption denied never materialized. The district office followed the Provincial Administrative Office’s letter explicitly, and within an hour of signing the divorce, I finalized the adoption of my daughter.

Thailand is called the Land of Smiles. I was not smiling. For the next six months, it was hard to see through the gloom. Tourists only see one side of Thailand without seeing the ossified, outdated cultural structure underneath. “Sabai sabai,” the Thais say. Relax. “Mai pen rai.” It’s all okay. I did not want to hear that. The cabaret shows and the walks down Pattaya’s streets or Soi Nana show a vibrant LGBTQ culture. The society is open, but whereas in Western countries protection under the law often precedes the establishment of societal norms, in Thailand the law appears to be stuck in a far-gone era. Changing sex on paper is prohibited as is same-sex marriage.

I am a transgender woman. I transitioned nearly two decades ago, well before I married my spouse in 2008, but I waited to document the change of my sex. Being transgender and out of the U.S. was a legal minefield. Due to wording of the Defense of Marriage Act, I wouldn’t have even been allowed to marry a Thai if I had documented the change of my sex. The 2015 Supreme Court ruling on Obergefell v. Hodges changed all that. After same-sex marriage was legalized in the U.S., I finally changed my passport the following year.

Family outside exploring after pandemic halted the immigration process

Thailand, though, does not permit the legal changing of one’s sex. Thus, during the next three years, through a legal loophole my wife and I were probably the only same-sex couple with a Thai marriage certificate. We didn’t hide it. Thai district offices viewed the certificate as an oddity but didn’t protest, well, until we went to finalize my daughter’s adoption.

Rationally, I understood the legalities for compelling us to divorce, but from a parent’s point of view, the decision was absurd. My wife was my daughter’s aunt by blood, and by compelling us to divorce, the government made me, a foreigner, the sole guardian of a Thai girl while cutting her aunt’s legal ties. If I had to leave the country, my daughter could literally be forced to stay in Thailand with no legal parents or relatives. As for my partner, after eleven years of marriage, our history was wiped, and all those visas for my partner to get out of the country with me suddenly became nearly impossible to obtain.

So, smarting from our legal loss, my partner and I made the logical decision that our future had to be in the United States where the law would protect us. Getting visas would take time. I extended my contract with the international school where I had been working and started planning.

The U.S. immigration process is a legal labyrinth. There seems to be a thousand forms, each connected to a small sub note for an immigration law. To move an adopted child to the U.S. requires legal custody and physical custody for at least two years as well as finalized adoption papers, but what constitutes the legal custody requirement is vague and dependent upon the residing authority’s decision. To get a fiancée visa for my partner, I need to show the ability to financially sponsor her, but the U.S. Embassy in Thailand most likely will not look at any income made in Thailand. The U.S. Embassy in other countries will. It was and still is daunting, but all I could do was continue to push forward.

Family Photo: Trish, Weo and May

My daughter’s visa took priority. I contacted the United States Citizenship and Immigration Services (USCIS) in Bangkok and inquired about the legal custody requirement. I had an official letter from Thailand’s Child Adoption Agency granting pre-adoption placement from April 2018. The USCIS in Bangkok wrote back that I could petition for my daughter in April 2020 at the USCIS office, thus giving me hope that the letter would be considered documentation for gaining legal custody. Hope can be crushed so easily.

April 2020 was too late by four months. Almost, as if to spite me, on December 31, 2019, President Trump closed nearly all of the international USCIS offices, including the one in Bangkok, and thus, all petitions would have to be sent through Texas. My visa for Thailand would end in June 2020, which would give me only two months to get my daughter out. I must say, the USCIS in Bangkok was very cordial before they left. They answered all of my frantic inquiries and advised me to request an expedited response from the U.S. Embassy in April, and so I just had to wait.

For my partner, I began the I-129f petition for the fiancee visa in December 2019 with the assumption that it would take around six months. If all went well, the whole family would leave for the U.S. in June of 2020. Of course, it was fated not to go well.

Covid-19 started making news in Thailand at the end of January 2020. The country was on full alert. At my school, every morning we had a briefing about the Covid-19 situation and all students were required to wear masks. By February, most interscholastic competitions were canceled, including the debate tournament my students were prepping for. Thailand is a top destination for Chinese tourists, and following the Chinese New Year, fear was in the air. It was as if the whole country was on a knife edge awaiting the outbreak that was sure to be only one day away.

In March, the number of cases exploded in Europe and hints of an impending outbreak were coming from the U.S. Like many, I was naive. I watched as the number of cases in Wuhan decreased dramatically. China showed the world that the virus could be controlled. Korea also experienced success in containing the superspreading event in Daegu and Thailand never had the big spike.

When it became clear that the epicenter for the coronavirus had moved to the U.S, I still assumed that the U.S. would be able to contain the virus. My plans did not change. I took a few standardized educator tests and updated my U.S. teaching credentials. I dived into the research and decided that Washington State would be our destination. Teaching salaries there were higher than most states. I continued to look to the future with optimism.

During that time, Thailand’s cases continued their slow increase. When the cases reached around thirty a day, the government decided it was too much and started shutting things down. By mid-March, the Ministry of Education required my school to continue online. On March 21st, a partial lockdown was imposed on Bangkok. On March 22, Thailand recorded its worst day with 188 cases. Then there was a week of a hundred cases each day, but the numbers decreased substantially after that.

Thailand never lost control. I sent in the expedition request for my daughter’s I-130 on April 17. By that time, the numbers in Thailand had fallen to around thirty cases every day. With my request, I set up an appointment for late April to go to the embassy. That never happened.

I got my reply on the same day. My expedite request was rejected. The U.S. Embassy did not consider an official letter for pre-adoption placement as being legal custody. According to the embassy, I would have to wait until April 2021. My mind worked overtime. I still had the option of going over the embassy’s head by sending the petition to the USCIS in Texas, but it would take time and it would be risky.

By this time, though, the world was going crazy. Thailand had banned all international flights on April 4th, and I had the uncomfortable realization that if I left Thailand, I would likely not be able to return. If the I-130 petition for my daughter were to be rejected, I might be unwittingly abandoning my daughter since my partner had no legal guardianship over her.

Then there was the question of residency. My home state is New York, and upon returning to the U.S., I would have to initially stay with my parents there. But New York City was the epicenter for the virus. My father has lung problems and there was a big worry that we could pick up the virus on the plane or in the airport. The grand plan to move to the U.S. suddenly became a dead end.

The U.S. had locked us out because the pandemic halted the immigration process, and I was stuck in Thailand for one more year.

Maybe it was a blessing in disguise. My school extended my contract with little hassle. As for Thailand, since April the number of Covid-19 cases have continued to decrease to single numbers. During the months of June and July, no community spread was reported. International flights opened for returnees, and the Covid-19 cases that have been caught have all come from returnees staying in the two-week mandatory state quarantine. Thailand, an emerging economy, has effectively killed the virus within its boundaries.

In mid-April, the reopening of the Thai economy started, and my family took advantage of the reopening with frequent visits to the parks. Despite the low counts, the government has been very careful. We are now in the fifth phase of reopening. Social distancing rules are in place and masks are required nearly everywhere, but everything else is nearly normal. Cinemas are showing old movies. Malls and department stores are open until 10 P.M. Pub and karaoke bars are open until midnight. Massage services are back.

In the middle of July, my family and I took a road trip to Khao Yai national park and its surroundings. The number of visitors to the park were counted and capped, but we went hiking unimpeded. Campsites were open and restaurants were serving food. Swimming in the waterfalls was prohibited to reduce crowd sizes, but mask rules were quite lax. At Chokchai Farm there were a limited number of activities, but my daughter and I were able to feed the sheep. People are no longer afraid.

When I call back to the U.S., my parents and siblings are still largely hunkered down. Several of my friends have gotten it, and my best friend’s mother passed away due to Covid-19. Now that numbers have started to rise a second time in the U.S., many look to the future with fear.

Thailand is the opposite. Long ago, I heard someone had contracted the virus at my condominium, but I didn’t know them, and I don’t personally know anyone who has had it here in Thailand. No cases of community spread have been reported for two months. We feel safe in our bubble. The economy is hurting from the lack of tourism, but many Thais don’t want foreigners back until Covid-19 has disappeared. They are happy in their safety.

My partner says it was foreordained for us to be stuck here. I have a job. The U.S. is laying off teachers. In Thailand, schools are opening up and primary students are physically attending schools without worry. My daughter is in school. The U.S. is contemplating doing remote classes out of fear of infections. We’re able to travel inside the country without much concern. Traveling in the U.S. is risky. My partner says she wouldn’t want to be in the U.S. right now.

Family on bridge

I miss America. I pray that this situation will blow over and I will be able to bring my whole family to America without more legal trouble, but I have to admit that the Thai government did a lot of things right with this pandemic. They took it seriously and had a national plan from January. From the start, every person found to be infected with Covid-19 was quarantined at an infectious disease ward in a hospital, which cut off disease vectors. Thus, family infections became less likely. The U.S. sends people home if they do not have severe symptoms. Thailand also did a lot of contact tracing and required those who were exposed to quarantine. There have been too many cases in the U.S. to consider contact tracing a possibility. Travelers in Thailand are sent to state quarantine facilities. In the U.S., travelers are asked to quarantine at home. And when the Thai government required masks, everyone wore them. Americans have been fighting this from the beginning. Thailand beat the virus, but America did not. And I am happy to live without that fear. That is the silver lining to my family and I being locked out of the U.S. and the pandemic halting the immigration process.

Read more LGBTQ stories with how an event planner faces a perfect storm of apathy or how a therapist sets realistic mental health expectations for the pandemic.