Married Binational Same-Sex Couple Face Deportation in San Francisco

A married binational same-sex couple face possible deportation proceedings despite having been wed for seven years, and without regard for the fact that one of the men is the primary caregiver for his husband, who suffers from AIDS, reported the San Francisco Chronicle on Aug. 9.

Bradford Wells, an American citizen, lives with debilitating health issues arising from his HIV positive status. He married Anthony John Makk, an Australian citizen, seven years ago in Massachusetts. The two have lived together in San Francisco for nearly two decades, the San Francisco Chronicle said.

But not for much longer. The U.S. Citizenship and Immigration Services has ordered Makk to leave the United States by Aug. 25 and refused to recognize the men's marriage under an anti-gay federal law from 1996, the Defense of Marriage Act (DOMA), which excludes all but heterosexual couples from legal recognition at the federal level.

DOMA present many problems for married American gay and lesbian families, because the law allows states to ignore one, and only one, legal contract entered into by the contracting parties in any given state of the union: That of marriage. As a result, a patchwork of laws across the nation makes it possible for a legally married couple to cross a state line and abruptly lose all legal rights and protections, being rendered legal strangers to one another.

DOMA also imposes steeper tax penalties on gay and lesbian families that heterosexual families are spared under the array of federal level rights and protections that marriage between people of opposite genders automatically confers.

For binational couples, the law is even more onerous. Whereas a heterosexual American could sponsor his or her spouse for legal residency, a green card, and even naturalization, same-sex couples are not allowed the same consideration.

Two federal court cases have found portions of DOMA to be unconstitutional. For reasons of constitutionality, the Obama Administration has declined to continue defending DOMA in the courts. But despite this, and although President Obama has said that he supports DOMA's repeal, the law remains in effect, reducing same-sex families in which both partners are citizens to the status of second-class citizens, and denying any protections at all to binational couples. For same-sex families of mixed nationality, the heartbreaking choice of separation or relocation is often the difficult dilemma they face.

When Makk sought permission to reside permanently in the United States as Wells' husband, immigration officials had no choice but to deny his application under existing law. On July 26, Makk and Wells learned that Makk had only a month to leave the country.

"The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship," read the decision from the immigration service. "For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman."

But without Makk at his side, how Wells will fare is unclear. Even if Wells were not ill, and Makk were not his caregiver, the principle of Makk's expulsion grates.

"I'm married just like any other married person in this country," Wells told the Chronicle. "At this point, the government can come in and take my husband and deport him. It's infuriating. It's upsetting.

"I have no power, no right to keep my husband in this country," Wells continued. "I love this country, I live here, I pay taxes and I have no right to share my home with the person I married."

Wells went on to say, "Anyone can identify with the horror of having the government come in and destroy your family when you've done nothing wrong, and you've done everything right, followed every law."

But it's the law that's now punishing their family, and unless someone with the power to supersede the order handed down by immigration officials, the two men face a difficult and painful separation. The Obama Administration does offer the hope that in some cases, same-sex couples might stay together. But there are too many binational couples caught in DOMA's bureaucratic grasp, the Chronicle noted, and it may not be possible for help to find the men in time.

"ICE's director, John Morton, issued a memorandum in June that offered guidance to agents in making enforcement decisions," the Chronicle reported.

"Makk meets several of the circumstances specified in the memorandum," added the article. "Aside from being a spouse of an American citizen, he is also the primary caretaker of a citizen, has no criminal history, and has legally resided in the country under various visas for many years."

The financial considerations for pressing on with their case are not inconsiderable. The article noted that Wells and Makk had to shell out $2,000 to file their petition in the first place, only for Makk to be denied permission to remain at his American husband's side. They could file another petition, but it would be costly and in all likelihood all they would gain from it would be an extra month.

But for Makk to relocate to Australia would also be costly, probably impossibly so, because he would lose his medical benefits.

The couple has allies working to help them. Immigration Equality made a statement on their behalf, and Nancy Pelosi's office said that Pelosi, a U.S. representative whose district includes San Francisco, is also working to prevent Makk's deportation.

"We are appealing to the Obama administration to begin to put into action what they've said repeatedly they can do," Immigration Equality's Steve Ralls said. "The Department of Homeland Security and ICE have said again and again that they can exercise discretion in individual cases, but they have not done so for a single gay or lesbian couple yet."

However, there have been successes of late for same-sex binational couples when immigration judges have found in their favor. One high profile victory is that of Josh Vandiver and his Venezuelan spouse, Henry Velandia. The two men had married in Connecticut last summer, and were facing deportation when a judge dismissed proceedings against Velandia in June.

But while DOMA is still in place, nothing is secured -- for Vandiver and Velandia, or for any other binational couple. "The fight isn't over," Velandia added.

In March, a group of lawmakers reintroduced the Respect for Marriage Act, which would repeal DOMA and extend the same rights and protections that heterosexuals enjoy to same-sex couples.

"The 15-year-old DOMA singles out legally married gay and lesbian couples for discriminatory treatment under federal law, selectively denying them critical federal responsibilities and rights, including programs like Social Security that are intended to ensure the stability and security of American families," a March 14 press release from the offices of Reps. Nadler, Barney Frank (D-MA), Tammy Baldwin (D-WI), Jared Polis (D-CO), David Cicilline (D-RI), and John Conyers (D-MI) said.

The bill has not gained traction, but as support for GLBT Americans grows -- and especially in light of lawmakers in New York recently approving marriage equality legislation, bringing the number of marriage equality states back up to six -- it remains possible that the bill could eventually win Congressional support.

Another possibility is that the courts will eventually strike DOMA down, opening the way for gay and lesbian Americans to lay claim to equal rights before the law for themselves and for their families.

Chris Geidner, writing in MetroWeekly on Aug. 10, offered a slightly different spin on the story. Noting that Wells' and Makk's situation is "more complex" than the thumbnail version of what the San Francisco Chronicle wrote, Geidner noted that the immigration agency's decision could be appealed and, eventually, a trial granted. Were that to be the case, an immigration judge could rule in favor of the couple, as was the case for Velandia and Vandiver.