Defense of Marriage Act threatens his citizenship (San Francisco Chronicle)

Defense of Marriage Act threatens his citizenship
Carolyn Lochhead, Chronicle Washington Bureau

Saturday, June 4, 2011

(06-04) 04:00 PDT Washington -- Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, have spent the last 19 years together, mostly in an apartment in San Francisco's Castro district.

Makk gave up his career, started a business in San Francisco and invested in rental property, all to be with Wells and meet various visa requirements. Seven years ago, they married in Massachusetts.

Starting June 13, Makk, 48, faces possible deportation if he remains in the country illegally when his current visa expires. If he leaves, he would not be readmitted, the couple would be all but permanently separated and Wells, who has severe health complications from AIDS, would be left without his spouse and sole caregiver.

"We're at the end of our rope," said Wells, 55. "Ever since we met, all we've tried to do is be together. The focal point of our lives, everything we've done, is just so we could be together."

Law denies benefits

They face this quandary because the 1996 Defense of Marriage Act denies all federal benefits, including spousal immigration preferences, to same-sex couples. If Wells and Makk were heterosexual, they could apply for an I-130 visa, or spousal petition, which could allow Wells to sponsor Makk for permanent U.S. residency.

President Obama and Attorney General Eric Holder said in February that they believe the Defense of Marriage Act is unconstitutional and would no longer defend it in court, but the administration is enforcing the law as required until it is repealed or struck down by the courts. It is under challenge in several states and will probably be decided by the Supreme Court.

"It's devastating, the idea of him leaving in a couple of weeks and not being able to get back in," Wells said. After suffering a near-fatal heart attack and severe arthritis in his hips, Wells said he is unable to care for himself. "I don't know how I'm going to manage," he said. "My stomach is in knots."

An estimated 54,000 bi-national same-sex couples live in the United States, according to the Williams Institute, a pro-gay think tank at UCLA. Not all of them are married.

Five states and the District of Columbia permit same-sex marriages, and several thousand couples were married in California during 2008 between a California Supreme Court decision permitting such marriages and voter passage of Proposition 8, which banned them.

Intervention requested

Immigration Equality, a gay-rights group, this week asked California Democratic Sens. Dianne Feinstein and Barbara Boxer, and House Minority Leader Nancy Pelosi, D-San Francisco, to ask the administration to put the San Francisco case on hold. All three offices said they are reviewing the matter.

A spokeswoman for the Immigration and Customs Enforcement agency could not comment on the San Francisco case and said no action has been taken because Makk still has a valid visa.

Because a deportation order has not yet been made, the couple has to decide whether Makk will risk remaining in the country illegally in the hope that the administration will not deport him.

Makk said he has scrupulously abided by U.S. immigration laws during their relationship, always holding a valid visa, never working illegally and never overstaying a visa by even a day. For many years, Makk was able to remain in the country through a special visa granted to traders by establishing a business designing and importing architectural glass from Australia. That business collapsed with the 2008 housing crash, taking his visa with it.

Since then, he has invested in the rental apartment building in hopes of securing an E-2 investors visa, but immigration officials have told him that he has not invested enough money.

The couple has been actively searching for other properties, but Makk said he cannot risk investing in something that would only bankrupt them and that he has scant hope of finding something viable in the next two weeks. There is no hard dollar figure that immigration officials say immigrants must invest to qualify for an investor visa.

Permanent ban

Makk is currently in the country through the Visa Waiver Program, which admits citizens of selected countries without a visa. Given his history of long visits to the United States, he was questioned by immigration officials for nearly two hours during his last re-entry after a visit to Australia to take care of his father, who subsequently died. If he stays illegally, as 11 million immigrants do, he would be banned permanently from re-entering the country if he leaves for any reason.

"If nothing is done, I will be departing," Makk said. "I won't stay illegally."

The couple could move to Australia, but Wells said he is too ill to leave. They considered moving to Mexico, but found that unworkable.

In April, Rep. Zoe Lofgren, D-San Jose, and 50 other members of Congress wrote to Holder and Secretary of Homeland Security Janet Napolitano, asking them to put a hold on same-sex immigration proceedings until the courts decide the fate of the Defense of Marriage Act or Congress repeals the law.

A similar letter was sent by Sen. John Kerry, D-Mass., and signed by 12 senators, including Boxer.

Lofgren, a ranking member on the immigration panel of the House Judiciary Committee, asked that the administration exercise its existing prosecutorial discretion to delay current removal proceedings against same-sex married couples and issue a moratorium on such cases.

All married same-sex couples would "be eligible for immigration relief but for DOMA," she wrote.

Administration officials replied that they would continue to enforce the law and refused to grant relief to the entire category of same-sex couples. But they said the agencies would "continue, where appropriate, to exercise discretion in individual cases based on the unique factors presented by that particular case."

Rep. Mike Honda, D-San Jose, has introduced repeal legislation, but it stands no chance of passage under the GOP majority. House Speaker John Boehner, R-Ohio, has hired outside legal counsel to defend the federal ban on same-sex marriage after the administration said it would no longer do so.