Even in the era of gay marriage, a spouse can be deported

U.S. immigration laws do not recognize gay couples.

By Saul Elbein

Peruvian Jair Izquierdo (center), Richard Dennis (left) and a judge (right) at their civil union ceremony in New Jersey (Richard Dennis)

New Jersey native Richard Dennis met Peruvian Jair Izquierdo in mid-2005 at the Wendy’s in Paramus, NJ where Izquierdo worked. Izquierdo gave Dennis extra french fries, then he gave him his number. Within six months they were living together.

But a troubling fact hung over the relationship: Izquierdo was in the country illegally.

Dennis immediately started pushing Izquierdo to apply for legal residency. And if he and Izquierdo had been a straight couple, this would have been relatively straightforward. They could have gotten married, and then used the marriage to apply for a green card. But according to the Defense of Marriage Act of 1996, or DOMA,  it is illegal for the federal government to provide any benefits for gay couples—and that includes providing citizenship or a work permit. This is true even in states, like New Jersey, which allows civil unions, and in states that allow gay marriages.

Dennis and Izquierdo’s love was in legal limbo. One visit from an immigration official would turn their lives upside down.

In love and underground

Dennis  and Izquierdo aren’t alone. According to a survey from Williams Institute at UCLA, there are an estimated 36,000 gay and lesbian couples in the US where one partner is undocumented. Their stories are all different. Some met abroad. Some have children they’ve raised together. Some, like Izquierdo, came on tourist visas and stayed; others had legitimate visas that ran out after they had already fallen in love with an American.

The recession has exacerbated the problem—it’s hard to get a work visa if there’s no work. “Work visas and student visas are temporary,” says Steve Ralls, spokesman at Immigration Equality, an advocacy group that lobbies for equal immigration rights for LGBT couples, as well as providing them with free legal aid. “If your visa runs out, you have to leave. With economic downturn, a lot of people are losing their work visas.”

Ralls: “For gay couples, neither of those options are readily available.”

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This puts a strain on relationships in hundreds of ways, both big and small. If your partner is illegal, he or she can’t fly in a plane, so neither can you. You drive everywhere. Your partner can’t open a bank account, so all accounting is done under your name. Your partner can’t get a deed on a house, so it has to be in yours. And, of course, there’s the constant fear that one day, your partner is going to be arrested and deported.

Dennis: “It’s always something in the back of your mind.”

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Looking for a loophole

Gay couples in this situation are forced, says Ralls, to start looking for a loophole—some reason, aside from the relationship, why their case is special.

When this strategy succeeds, it is often thanks to some combination of having friends in high places and a truly tragic story.  In January 2012, Anthony John Makk, an Australian national, was granted a two-year stay of deportation because he was the primary caregiver for his partner, who suffers from AIDS, and because House Minority Leader Nancy Pelosi personally intervened in the case. In February 2012, South African national Tim Smullian won a one-year reprieve thanks to the help of, among others, Sen. Chuck Schumer.

“There’s no question,” Ralls said, “you need the stars to align in a very specific way to get some relief, and that shouldn’t be the case. It’s really great for couples that have very compelling stories, and members of Congress who will fight like hell for them. But lots of couples don’t have a Chuck Schumer or a Nancy Pelosi knocking on the door for them.”

The asylum option

In 2006, five years after Izquierdo started dating Dennis, Izquierdo applied for asylum—on the grounds of violence against

Richard Dennis and Jair Izquierdo at Disney World (Richard Dennis)

homosexuals in his native Peru. Dennis says their  immigration lawyer was optimistic—there had been several high-profile murders and beatings of gays in Lima which the police had ignored. The lawyer had had success with similar cases—in fact, asylum, especially for the HIV positive, has been one of the only effective tactics for people like Izquierdo. Aside from employer-sponsored work visas and the green-card lottery, it’s really the only long-term option.

“For two years during the asylum application,” Dennis said. “For the first time we could fly together. Jair could open a bank account. He had to do taxes.”

But after two years of hearings and appeals, Izquierdo’s application for asylum was conclusively denied. He was issued a deportation order. In September 2009 the couple went underground. They waited. They were hoping for some sort of political sea change—a presidential executive order halting deportations, or a successful congressional challenge to DOMA.

Then one day in October 2010, Izquierdo got a call from a man offering him a job. Izquierdo went out to meet them. The “customers” turned out to be Immigration and Customs Enforcement agents.

Dennis and Izquierdo had a good lawyer and well-connected help—Sen. Robert Menendez of New Jersey. The day Izquierdo was deported, Dennis had a phone conference scheduled with Janet Napolitano to talk about the case. It didn’t make any difference. On December 17, 2010, Izquierdo was told to pack up his things. Less than three hours later he was on a deportation flight headed for Lima.

Waiting for a solution

Izquierdo was unlucky in the timing of his detention; if he had stayed under the radar a little longer, he might not have been deported. Last February, the Obama Department of Justice informed Congress that it didn’t agree with DOMA and would no longer defend it in court.  In August 2011, the administration announced that “individuals whose petitions [for green cards] were denied are not likely to be placed in removal proceedings.” The Izquierdos of the world are, for now, at the bottom of the deportation priority list.

Ralls: “This last great hope has been closed to them.”

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A permanent solution would take an act of Congress. Since 2000, Senator Patrick Leahy and Rep. Jerry Nadler, have proposed a bill, dubbed the Uniting American Families Act, which would allow same-sex partners to achieve residency in the same way as heterosexuals. The bill has always died in committee. Ralls, the Immigration Equality spokesperson, hopes that maybe Obama will throw his support behind it if he wins re-election.

Meanwhile, Izquierdo and Dennis wait some more. Izquierdo is living in Lima, working as a hairdresser. Dennis has been to visit him twice. An appeal they filed contesting Izquierdo’s deportation was rejected, then that rejection was overturned. Now a court is deciding whether to let Izquierdo reapply for asylum. “If it works, he’ll hopefully be back in asylum proceedings,” Dennis said. “That’s just the first in a long series of steps. There are years more of this.”

Dennis: “He belongs with me.”

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