Monday, August 27, 2007

Married Couple Split up due to Immigration

Reunite this family

August 27, 2007

TIM COCO, 46, runs a successful advertising agency in Haverhill. Six years ago he met Genesio Januario Oliveira, who was visiting Boston on vacation from his home in Brazil. The two fell in love and in 2005, under rights protected by the Massachusetts Constitution, they were married. Since then, they have lived happily and quietly in a Boston suburb with their dog, Q-Tip.

Except that two weeks ago Oliveira was forced to return to Brazil under orders from the US Board of Immigration Appeals, which denied his application for the asylum status he hoped would allow him to stay in the United States with his husband. The couple needed to pursue the asylum route because their same-sex marriage is not recognized by the federal government, and federal laws supersede states' when it comes to immigration.

According to the 2000 US Census, some 35,000 same-sex couples who list themselves as "unmarried partners" similarly include one person who is a US citizen and one person who is not. They do not all try to follow the law as dutifully as Coco and Oliveira. Indeed, Oliveira is probably rare among immigrants for complying with the BIA's June order to "voluntarily depart" within 60 days or risk deportation, fines, and a 10-year bar from applying for another US visa. When he arrived at the US consulate in Sao Paulo to certify he had left within the 60 days, his visa was canceled. "I guess you don't get any points for playing by the rules," says Tim.

Because Congress passed -- and former President Clinton signed -- the mean-spirited Defense of Marriage Act in 1996, no federal rights extend to the roughly 9,000 married same-sex couples in Massachusetts. There are more than 1,000 different benefits -- from filing joint income taxes to receiving Social Security benefits -- that are denied to same-sex couples everywhere in the country, whether they live in a state that recognizes their marriage or civil union status or not. The ability of a US citizen to sponsor a husband or wife for immigration to the United States, called a form I-130, is just one of them. "Same-sex couples are utterly shut out of that process," says Mary Bonauto, the lawyer who argued the Goodridge case before the Massachusetts Supreme Judicial Court that led to legalized gay marriage in the state.

Oliveira's application for asylum was first denied by an immigration judge in March 2006. The ruling said that any mistreatment he experienced in Brazil on account of his homosexuality, or his fear of future violence, "does not rise to a level of persecution." Asylum cases are difficult to win, but it's fair to say a partner in a gay marriage would have reason to fear intimidation and harm in Brazil, where the ministry of health reported 180 killings of homosexuals in 2004.

Among the many ironies of this case is that Brazil, despite its record of serious hate crimes against gays, is one of only 16 countries whose government does recognize same-sex partnerships for immigration purposes. So Oliveira can sponsor Tim's application to emigrate to Brazil, but not the other way around.

Another irony, of course, is that the Immigration and Nationality Act, this country's last word on immigration, still defines a "preference" for family unification.

Yet another heartbreaking Catch-22: Since the couple's various appeals describe their lawful wedded status in Massachusetts, Oliveira has essentially declared his interest in remaining in the United States. Any other visa that might be available to him -- student, employment, or tourist -- requires that he certify his stay will only be temporary and that he intends to return to Brazil.

What have these two men done to deserve such treatment from the US government? They are indistinguishable from immigrants who routinely qualify for permanent residence status due to their marriage, except that they are not heterosexual.

Relief for Coco and Oliveira will not come easily. Asking the US Supreme Court to find the Defense of Marriage Act an unconstitutional violation of civil rights is a long shot at best. Building support in Congress to revisit the Defense of Marriage Act is a better strategy, but one that still could take several years. The most promising solution now probably is a bill in Congress that would establish "permanent partnership" status for unmarried couples so that a US citizen could sponsor a foreign-born partner for immigration.

Introduced by Senator Patrick Leahy of Vermont and US Representative Jerrold Nadler of New York, the "Uniting American Families Act" doesn't guarantee that every applicant will be granted entry, and it doesn't force Congress to "recognize" gay marriage. It simply provides an avenue for couples who are over 18, in "a lifelong commitment" with each other and "unable to contract . . . a marriage cognizable under this Act" to petition for immigration status. The Leahy-Nadler bill would eliminate the discriminatory box that shuts same-sex couples out of the immigration laws of the country.

Great strides toward equality for gays have been made in this country, but the woeful fate of Tim Coco and Genesio Oliveira shows that thousands of same-sex couples, even in Massachusetts, still aren't really full citizens.
© Copyright 2007 The New York Times Company

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