San Francisco Gay Married Couple Loses Battle With Immigration

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk’s application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples.

The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems.

“I’m married just like any other married person in this country,” Wells said. “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. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married.”
Husband’s pleas
Wells pleaded with Homeland Security Secretary Janet Napolitano and President Obama to intervene.

“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,” Wells said.

The agency’s decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the decision said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.”

Obama and Attorney General Eric Holder decided earlier this year that the law, commonly known as DOMA, is unconstitutional on equal protection grounds and that the administration would no longer defend it in court. House Republicans hired an outside counsel to defend it instead. However, the administration said it would continue to enforce the law, while exercising discretion on a case-by-case basis.

ICE’s director, John Morton, issued a memorandum in June that offered guidance to agents in making enforcement decisions. Because no law enforcement agency can pursue every case, they routinely prioritize where to commit the government’s limited resources.

The memorandum said prosecutions should seek to promote “national security, border security, public safety and the integrity of the immigration system.”
Makk meets several of the circumstances specified in the memorandum. 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 couple said they spent nearly $2,000 to file the petition that was denied, and now must decide whether to file a motion to reconsider the decision, which Wells said would almost certainly be denied, giving the couple at most another 30 days of residency.

Makk gave up a professional career in Australia to be with Wells, and started a business in San Francisco and invested in rental property to meet various visa requirements. He said he has never remained in the country illegally.

Poor alternatives
Wells could move to Australia, but he said doing so would require him to give up his extensive medical care and insurance in the United States.

“We are appealing to the Obama administration to begin to put into action what they’ve said repeatedly they can do,” said Immigration Equality spokesman Steve Ralls. “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.”
In rare cases, lawmakers can introduce so-called private bills to shield specific immigrants from deportation, but only after deportation proceedings have begun. Such bills are considered a last resort.

Drew Hammill, a spokesman for Rep. Nancy Pelosi, D-San Francisco, said Pelosi has contacted immigration officials on behalf of the couple and “will be working to exhaust all appropriate immigration remedies that are open to pursue.”