Immigration laws make it doubly difficult for foreign-born partners to remain in the U.S.
By Josh Richman, Staff Writer The Oakland Tribune August 5, 2007
[Editor's Note: This newspaper agreed to withhold the identities and other identifying details of the couple featured in exchange for their cooperation in telling their story.]
Gary and Michael have been together for more than 29 years, but the life they've built could be undone in an instant.
Gary is an illegal immigrant, and he's HIV-positive.
If Gary, 47, and Michael, 60, were a man and a woman, they could marry and Gary could then apply for legal residence right away. But federal authorities don't recognize same-sex marriage.
If Gary had been an illegal immigrant by 1986, he could have gained amnesty under immigration reforms enacted that year. But he was here legally until 1996, by which time changes in immigration law changes made it virtually impossible for him to remain here legally.
Neither a local House member's effort on Gary's behalf nor a bill to help couples like Gary and Michael across the country is likely to get a hearing, even in this Democrat-dominated Congress.
Theirs is the immigration reform that dare not speak its name.
The cost to Gary has been enormous.
"My father died while I was stuck here," he said. Diagnosed with asbestos-related lung cancer, his father could no longer make an annual trip to visit Gary in the U.S., and Gary couldn't go visit him lest he be barred from returning. "My father wrote us this letter, and he underlined 'Don't even think about coming back here' because he knew it would ruin things for us if we did.
"So, if we're talking family values, he certainly valued our family."
'Cruel and unusual' law
They met 29 years ago in Gary's native Europe, where Michael was vacationing. "It was love at first sight, and from that point on the main thing was for us to find a way of being together," Gary said.
After traveling back and forth on tourist visas to visit each other, Gary moved to the Bay Area on a student visa, which was extended several times as he studied and then gained practical experience in his chosen field. He has been a licensed marriage and family therapist since the early 1990s. He last visited Europe in late 1995 or early 1996, just before his final visa expired.
He wanted to obtain permanent residency, often called a green card. He already had obtained a national-interest waiver, which means that due to his work and expertise, it is in the nation's best interest to let him stay.
But there was another hurdle to clear.
The secretary of health and human services used to have exclusive power to decide which communicable diseases are grounds for excluding prospective immigrants, foreign students, refugees and tourists from the United States.
HIV/AIDS was so listed in 1987, but after HHS secretaries in the George H.W. Bush and Clinton administrations both proposed removing it, Congress in 1993 enacted a formal ban making HIV grounds for exclusion.
An HIV-positive person can seek a waiver of the ban if his citizen or permanent-resident spouse affirms that should the applicant grow ill, he will be cared for without public support.
A local House member's staff advised that Michael should submit such an affidavit, but apparently same-sex couples can't do that. If there had been any question of that before, the Defense of Marriage Act, enacted in September 1996, made it clear that "spouse" could mean only a member of a heterosexual marriage.
An immigration agent summoned Gary to her San Francisco office to say apologetically that there was nothing she could do to help, other than move his file to the bottom of the pile so it would take longer for the government to get around to ordering him out of the country.
Soon afterward Gary received a letter that said he could either arrange to leave the country or stick around and face deportation while pursuing appeals.
He chose the latter, but then the law changed.
Until 1996, people, including those with HIV, could win a "suspension of deportation" and stay in the United States if they had lived here for seven years, were of good moral character and could show they would suffer "extreme hardship" if they returned home.
The Illegal Immigration Reform and Immigrant Responsibility Act, also enacted in September 1996, changed those requirements. Now an applicant could win "cancellation of removal" only if he had lived here for 10 years and could show that a citizen or permanent-resident spouse, child or parent would suffer "exceptional and extremely unusual" hardship if he were sent home. Again, Michael isn't recognized as Gary's spouse, so it was another dead end.
"This gentleman's circumstances really are the perfect illustration of why the complete and utter refusal to recognize same-sex couples is cruel and unusual punishment for gay people," said Rachel Tiven, executive director of New York City-based Immigration Equality.
"That is just blatant discrimination against gay couples because they're gay. Tearing families apart based on their sexual orientation is un-American."
Bill with little hope
Gary has lived largely under the bureaucratic radar for a decade, hoping for a reprieve from Congress. A local House member has carried a "private bill" for Gary - a piece of legislation seeking immigration relief just for him.
"I generally do not introduce private bills, but I made an exception this time because of the nature of this case - this situation they find themselves in is so unjust, so wrong," the lawmaker said.
Private immigration bills go first to the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, chaired by Rep. Zoe Lofgren, D-San Jose. If approved there, such a bill would need full committee and floor votes, would need to win Senate approval, and then would need to be signed into law - an arduous road for so narrow a bill.
Gary's bill probably won't even make it onto that road.
Lofgren's subcommittee heard no private immigration bills while Congress wrestled with comprehensive immigration reform this spring. It heard its first batch July 27.
Committee policy is not to discuss details of any private bills except your own, Lofgren said, but one she authored herself was similar to three others heard that day. One was from a man who had been brought to the U.S. at age 4, who has no relatives in his native country and doesn't speak its language.
Also heard July 27 was a bipartisan bill to grant green cards to 26 relatives of illegal immigrants who died in the World Trade Center on Sept. 11, 2001. This was passed out to the full committee on a voice vote.
More private bills will be heard in time, Lofgren said, but probably not one for someone like Gary.
"The other calculation is whether you can get approval for bills," Lofgren said. "No matter what I think, if we're going to have a partisan fight over something and not be able to pass it, you're likely to turn your attention to something else. There's no point in bringing something up that you know you can't pass."
Slow change on reform
Gary has hoped that if the private bill doesn't fly, a general one helping everyone in his situation might.
The Uniting American Families Act was introduced May 8. The companion bills - House Resolution 2221, sponsored by Rep. Jerrold Nadler, D-N.Y., and Senate bill 1328, sponsored by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., - would let citizens and legal residents in same-sex relationships sponsor their partners for immigration purposes just like married couples.
Introduced in four previous Congresses as the Permanent Partners Immigration Act, the legislation has always died in committee. Gary hopes this could be a different ball game now that Democrats are the majority: "I think we have more ears to listen to us right now."
Among the current House bill's 83 co-sponsors are Barbara Lee, D-Oakland; Pete Stark, D-Fremont; George Miller, D-Martinez; Ellen Tauscher, D-Alamo; Tom Lantos, D-San Mateo; Anna Eshoo, D-Palo Alto; Mike Honda, D-San Jose; and Lynn Woolsey, D-Petaluma. Lofgren co-sponsored it in past Congresses, but did not this time because she knew it would come before her subcommittee.
To die. Again.
"I think it doesn't make good policy sense for our laws not to allow same-sex partners to petition for each other," she said. "But having said that, my assessment is that we would not have the votes to pass that bill in this Congress."
It probably won't even be brought forward for hearing, she said.
"We only have so many hours, so many days, and if we already have an assessment that we can't get a yes vote, we're using those days on something we can't pass," she said. "Being chairman, I don't get to do just what I want. I have to figure out what we can get a consensus to achieve."
Bob Dane, spokesman for the Federation for American Immigration Reform, said, "Gay and lesbian issues are not our bailiwick." But while FAIR doesn't formally oppose the legislation, it "remains skeptical" of adding bureaucratic burdens, such as the need to prove same-sex partnership, at a time when the immigration system is already in crisis. "This is not a gay-lesbian issue as much of a verification-of-stated-claims issue," he said.
Despite what Lofgren said, Tiven, of Immigration Equality, said she's "optimistic that we are going to be able to get hearings in this Congress." With debate over immigration reform and gay rights both at fever pitch, addressing their intersection is crucial "so that members of Congress and all Americans can hear how these families are suffering," she said.
Tiven said census data shows there are about 40,000 same-sex, bi-national couples in the United States, some of whom have found solutions to their immigration issues. About 29 percent are in California. None, she said, should be "forced to choose between their country and the person they love."
Awaiting deportation
There's one more legislative hope for Gary.
Rep. Lee last week introduced a bill to repeal Congress' 1993 ban on HIV-positive immigrants and return authority to the HHS secretary. The secretary would be required to re-review HIV/AIDS, provide a 30-day public comment period and then report to Congress on whether to maintain the ban by regulation or remove it entirely.
Lee said cases like Gary's compelled her to introduce the bill: "This is one of the reasons I said, 'Oh, no, no, no, something must be done.'
"We can't even hold an international AIDS conference in the United States of America because of this travel ban, and I think that is about as un-American as you can get," she said.
Lee said she hasn't yet gauged support for the bill. Lofgren's subcommittee will be this bill's first stop.
Gary and Michael endure this bureaucratic and legislative brick wall stoically.
When Michael notes HIV-positive status can still count in one's favor when seeking asylum, Gary quips, "I actually had played with the idea of asking for asylum to be protected from the oppressive immigration laws of this country ... but I was told that wouldn't work."
They were approached once by a lesbian couple facing the same problem and proposing sham marriages to win green cards for the noncitizen partners. Gary and Michael balked. They'd known two couples who tried this with disastrous results, as one couple later broke up and a vindictive ex-partner threatened to blow the whistle. Sham marriages for immigration purposes are federal crimes punishable by prison time, stiff fines and deportation.
"You think you're in the same boat together, but then one of the boats sinks," Michael said. "It's like the sword of Damocles - it hangs over your head forever, and there's no statute of limitations."
Michael took an early retirement, in part so that if Gary is finally deported, it will be easier for him to pull up his own roots and move to Europe. If that happens, they'll get married there, and then perhaps mount an international challenge to U.S. immigration laws - something that surely would be a long, arduous legal battle fought from across the Atlantic.
"The irony is that we tried really, really hard to do everything legally and above the board with the idea that eventually we could succeed," Gary said. "This is what we get for being honest."
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