Immigration, marriage laws leave same-sex couples in limbo

McClatchy NewspapersMarch 21, 2012 

WASHINGTON — Love may cross oceans and borders, but tens of thousands of same-sex couples in the United States live under the threat of separation because federal law prohibits immigration authorities from treating them the same as married opposite-sex couples.

And in a country where feelings run deep on immigration and same-sex marriage, the foreign-born same-sex spouses and partners of Americans live in a unique legal limbo: In the eyes of the government, they're neither married nor are they citizens.

It's an emotional and financial burden. They can't leave the country to see loved ones for fear they won't be allowed back. They might not be allowed to work or get loans to pay for college. If they're deported, they can be barred from re-entering the U.S.

"It's dehumanizing," said Frederic Deloizy, a native of France who's raising four children with his American husband in Harrisburg, Pa. "You really feel less than a person. You're certainly not a citizen. You're just here and you're not allowed to do anything else."

If a U.S. citizen marries a foreigner of the opposite sex, he or she can apply for a green card for the spouse to stay in the country and eventually become a citizen. That process isn't available to about 28,500 same-sex couples, however.

The 1996 Defense of Marriage Act blocks same-sex couples from receiving a variety of federal benefits that are available to opposite-sex married couples, including ones involving immigration. And it doesn't matter if they're married or in civil unions, or they live in one of a growing number of states that recognize same-sex marriages.

"The law is destroying families," said Mark Himes, who married Deloizy in 2008 in California. "We're not simply two men. We have four children who came out of the foster care system. We are hoping that marriage laws will open up in time to save us."

Their story brings together two issues that divide elected officials, religious leaders and Americans of all backgrounds. The U.S. Conference of Catholic Bishops broadly supports immigration rights, including asylum for gays and lesbians who fear persecution in their home countries. However, the bishops oppose same-sex marriage or any policy that would give same-sex couples the benefits of marriage.

"We don't support any measure that would violate the principles we believe in as Catholics," said Johnny Young, a spokesman for the bishops.

However, a Pew Research Center poll in October showed that 52 percent of U.S. Roman Catholics support same-sex marriage, a higher percentage than the 46 percent of Americans overall who back it.

Congress is divided, too. The Respect for Marriage Act, which would repeal the Defense of Marriage Act, has co-sponsors in almost a third of the House of Representatives and the Senate. The Uniting American Families Act, which would give same-sex couples the same immigration rights as opposite-sex ones, has a similar level of support in both chambers.

At the other end of the political spectrum, 32 House lawmakers have signed on to legislation to amend the Constitution with a definition of marriage as being between one man and one woman, which would further complicate the immigration cases among same-sex couples.

President Barack Obama, the son of a binational straight couple, also illustrates the conflict.

He supports gay rights generally, but not same-sex marriage. He also supports a comprehensive immigration overhaul, and he said in a speech in Texas last May that, "I don't believe the United States of America should be in the business of separating families. That's not right. That's not who we are."

But he didn't address the immigration rights of same-sex couples in the speech, and the White House refused this week to comment on where the president stands.

Brian Andersen of Philadelphia, who married his Indonesian partner, Anton Tanumihardja, in front of the White House last June and immediately filed a petition for a green card based on their marriage, said the Obama administration could do more.

"We'd like to see them put their money where their mouth is," Andersen said.

Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized the cases of immigrants with serious criminal records. It appeared to give agents some extra discretion in cases that involve binational gay couples. But the DHS says that until Congress repeals the Defense of Marriage Act or the courts strike it down, the administration will enforce it.

"There has been no change in policy with regards to deportation cases affected by the Defense of Marriage Act," DHS spokeswoman Barbara Gonzalez said in a statement.

Richard Dennis, of Jersey City, N.J., hopes that the government will reopen the case of his partner, Jair Izquierdo, who was deported to his native Peru in late 2010 after his visa expired.

"For the first few months after he was deported, he was in shock," Dennis said. "It's an emotional toll on both of us."

Authorities have since halted deportations in similar cases.

"Things started happening after Jair was deported," Dennis said. "I think we were a victim of timing."

Federal courts in Massachusetts and California have ruled the Defense of Marriage Act unconstitutional, and other cases are pending. Last year, Attorney General Eric Holder said the Justice Department would stop defending the law in federal court.

But House Republican leaders mounted their own defense of the law, and legal experts anticipate that the Supreme Court ultimately will decide its fate.

Steve Ralls, a spokesman for Immigration Equality, a New York-based gay rights group, said that even if the Defense of Marriage Act were struck down, "couples who live in a state where they don't have a valid marriage would not benefit from that."

Joy Hayes and Lujza Nehrebeczky were married in Connecticut last year, but they live in Lexington, Ky., where their marriage isn't recognized.

On the advice of an attorney, Nehrebeczky won't attempt to travel to Hungary to see her mother, who has cancer. She fears that her student visa might not be renewed.

"Why should I have to make the choice between my spouse and my sick mother?" she asked. "If I were married to a man, I would be on my way to citizenship."

It isn't as simple as moving to another country. Nehrebeczky has lived in the United States legally for a decade. America has always been home to Hayes, who's from Tennessee.

"Our life is here," Hayes said.

Dennis and Izquierdo met in 2005 and got a civil union in New Jersey in 2008. But then Izquierdo's tourist visa expired, and his request for asylum was denied. Immigration and Customs Enforcement considered him an immigration fugitive, and he was ordered to leave.

"Immigration fugitives, or those who flagrantly ignore an immigration court's order to leave the country, remain an enforcement priority," ICE spokeswoman Gillian Christensen said.

Tanumihardja was facing a similar order on Valentine's Day last year. His tourist visa had expired, and the government turned down his repeated petitions for asylum.

The government backed off, but now Andersen and Tanumihardja are stuck in a "holding pattern," said Lavi Soloway, a New York immigration lawyer who represents several same-sex couples in similar straits.

The couple is scheduled for an interview with immigration officials in May to consider Andersen's petition for a green card.

"I'm not expecting too much," Tanumihardja said.

Soloway thinks the petition will be denied.

"I don't live in 'Alice in Wonderland,' " he said. "But this is important for Brian and Anton."


Same-sex couples and immigration: A census study

Attorney general's letter to House of Representatives regarding the Defense of Marriage Act

Memo from Immigration and Customs Enforcement director on prosecutorial discretion


Gay marriage question evolves one state at a time

Gay marriage supporters say they're seeing gains

Obama opposes N.C. constitutional amendment on gay marriage, civil unions

Poll: Californians more supportive of gay marriage

McClatchy Newspapers 2012

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