After fleeing Peru in 2001 because he was persecuted for being gay, Jair Izquierdo settled in New Jersey, met his future husband, and started a life with him. But that life was brought to an abrupt halt last year when Izquierdo was deported for being in the country illegally.
Izquierdo and his partner, American citizen Richard Dennis of Jersey City, N.J., are one of thousands of binational same-sex couples in the United States that struggle with deportation. They were joined together by a civil union, but Izquierdo was an illegal immigrant, and because immigration law is federal, rather than state, Dennis was unable to sponsor him for citizenship.
“Most people don’t even realize how screwed up it is,” Dennis said of the current immigration law and how it applies to gay couples. “There’s so much subjectivity and fear and misinformation.”
The Defense of Marriage Act
The problem for couples like Dennis and Izquierdo is the Defense of Marriage Act, which ruled in 1996 that marriage is a legal union between a man and a woman. Because of DOMA, the federal government and its agencies, including those responsible for immigration benefits, are prohibited from recognizing same-sex marriages and civil unions.
“It’s very hard to explain to the many people who call us every day because it’s so patently unjust,” said Victoria Neilson, the legal director at Immigration Equality, a national organization that advocates for the rights of lesbian, gay, bisexual and transgendered immigrants.
In February, the Obama administration announced that it would no longer continue to defend DOMA in the courts. However, it will be enforced until Congress or the Supreme Court votes to strike it down. In the meantime, the administration claims to be focusing on immigrants with criminal records.
This makes sense, Neilson said, because the backlog of immigration cases in each state would ease up, and many immigrants with clean records and ties to the community would have their cases closed. But whether this theory is being put into practice is a source of contention.
“It doesn’t really seem like the word has reached the field of the actual attorneys and ICE agents who are charged with deciding whether to put people in removal proceedings or not,” Neilson said, referring to the people working for Immigration and Customs Enforcement (ICE).
Dennis echoes Neilson’s concerns.
“They talk tough about secure communities and weeding out criminals, but I think that they just want to deport as many people as possible,” he said. “So the rhetoric doesn’t match the actions and it doesn’t match reality.”
Fighting for “Traditional” Marriage
Immigration Equality advocates for same-sex marriage so couples like Dennis and Izquierdo can be together. On the other side of the issue are the signers of the Manhattan Declaration, who believe in the traditional marriage view that DOMA reinforces.
Helen Alvare, a professor at the George Mason University School of Law, signed the declaration because she believes that maintaining traditional marriage protects children. She wants the government to consider new reforms that scholars and legislators have come up with that would result in what she calls “equal recognition.”
Then she heard the story of Dennis and Izquierdo. She called their separation “a huge tragedy in their lives,” but was left unconvinced that the laws of marriage should be changed.
“Is this situation really enough to overturn the argument that we really need to make something special of opposite sex unions?” Alvare asked. She said that traditional marriage still needs to be honored above all.
For couples like Dennis and Izquierdo, she suggested going some other way than “the marriage route.”
“Changing marriage as a tool for [immigration benefits] is not enough.”
According to the Williams Institute at UCLA, there are an estimated 28,500 binational same-sex couples living in the United States. The options are limited if the foreign partner is in the country illegally, especially if it has been for longer than a year, like it was for Izquierdo.
“If someone’s here with a visa and they overstay, under current immigration law, it’s almost impossible to change from being here illegally to being here legally within the United States,” said Neilson. “And if a person leaves the country to try and legalize their status, if they have been here over a year, they can’t come back for ten years.”
Izquierdo applied for asylum after having been in the country for five years, and was denied. A series of appeals and requests to reopen the case have led to a court sending the decision back to the immigration judge, claiming the reasoning to not reopen were invalid.
Dennis said that they will move to Canada or Europe if Izquierdo cannot come back to the U.S., a common remedy among binational couples.
“We do see a fair amount of couples who end up giving up on the U.S. entirely and starting a new life in Canada,” Neilson said.
Since the current Congress has not passed much legislation, Immigration Equality is looking to the Supreme Court to repeal DOMA. Neilson suspects that the earliest this could happen is 2013, so Immigration Equality is pursuing other legislative actions in the meantime.
The Uniting American Families Act is pending, a bill that would amend immigration law to say “permanent partner” where “spouse” exists, so an American can sponsor his or her partner for immigration benefits.
There’s also the Respect for Marriage Act, which would legislatively appeal DOMA. Immigration Equality also encourages its clients to call their political representatives and ask for their help.
“When you work with lesbian and gay immigrant families, you see that it’s not an abstract right,” Neilson said. “It’s a fundamental desire to just be with the person you love. And that’s just such a heart-wrenching situation to talk to someone who finally found the person they want to be with, and they can’t be with them because of this unjust law. It’s got to go.”