Venezuelan native Alex Benshimol, foreground, and Doug Gentry have asked… (Jae C. Hong / Associated…)
Reporting from Washington — Bradford Wells, a retired computer programmer in San Francisco, has chronic health problems that threaten his life and an immigration problem that threatens to split up his marriage and take away his caregiver.
He was married seven years ago in Massachusetts to Anthony Makk, a citizen of Australia. But in June, Makk's visa expired. The couple applied for a spousal green card, but they expect to be denied because the Defense of Marriage Act forbids federal authorities from recognizing a same-sex marriage.
Wells and Makk are among an estimated 24,000 same-sex couples in the United States in which one partner is not a citizen. Not all of them are married, but those who are find their legal commitment has no standing in the eyes of immigration agents.
"If [Makk] becomes illegal, then they can step in, and we don't know what would happen," Wells said. "Some mornings, I can't get out of bed. If he were not here, no one would be here to help."
As the nation remains entrenched in a debate over what to do about an estimated 11 million illegal residents, the Obama administration has released new guidelines to provide flexibility in individual cases without conflicting with other federal laws. Because the marriage act, passed in 1996, remains the law, the administration has stopped short of a blanket policy change on deportation cases involving married same-sex couples.
Instead, John Morton, director of Immigration and Custom Enforcement, sent a memo in June instructing his agents and lawyers to focus their deportation efforts on illegal immigrants who are criminals, gang members or security threats. He also urged them to "exercise discretion" in favor of illegal residents who have a "spouse, child or parent" who is a U.S. citizen or who is "primary caretaker" for someone who is ill, disabled or a child.
The directive did not mention legally married same-sex couples. So couples such as Makk and Wells must navigate a muddled and subjective process, one that gives immigration officers the power to allow illegal same-sex spouses to remain in the country — provided the agent does not cite marriage as the reason — or to proceed with deportations.
Gay rights advocates say the flexibility helps, but means married same-sex couples remain vulnerable to a range of outcomes.
Two weeks ago in New Jersey, Los Angeles attorney Lavi Soloway, who represents a number of married same-sex couples in deportation cases, scored a victory when the government agreed to stop the deportation of Henry Velandia, a Venezuelan man who is legally married to Josh Vandiver, a 30-year-old graduate student at Princeton University. Immigration officials said the deportation was not a priority. "That was a good sign, but it was only one case," Soloway said.
On Wednesday, a Southern California couple — Doug Gentry and Venezuelan native Alex Benshimol, who married last year in Connecticut — appeared before a San Francisco judge and asked the government to use its discretion to drop deportation proceedings against Benshimol. Judge Marilyn Teeter gave immigration officials 60 days to respond. Teeter postponed the next deportation hearing until September 2013 if the government does not drop the case.
Soloway, who is also their attorney, praised the judge's "compassion and understanding" and said he would "continue to advocate for termination of these proceedings and a moratorium on all deportations of spouses of lesbian and gay Americans."
The discretion directive came too late for Richard Dennis and Jair Izquierdo. Last December, Dennis, a New York banker, watched as his partner was put on a plane back to Peru. The two had a civil union in New Jersey and had applied for a green card, but that did not deter the government from deporting Izquierdo after his tourist visa expired.
"We just got a perfunctory 'denied' from them, with no explanation given.... The whole system seems very arbitrary," Dennis said.
The administration has sent a mixed message on the Defense of Marriage Act. In February, President Obama and Atty. Gen. Eric H. Holder Jr. announced that the government would no longer defend the act in court against claims from legally married same-sex couples in New England, who contend they deserve the same federal benefits as heterosexual couples. Since these gay couples were legally married in their states, the federal government could not deny them equal benefits, the administration said.
That case is now before a U.S. appeals court in Boston, with former Bush administration lawyer Paul Clement stepping in to defend the law on behalf of House Republicans.