U.S. born Bradford Wells and Australian born Anthony John Makk have been married for seven years after having wed in Massachusetts, and have been together for 19 years, but the U.S. Citizenship and Immigration Services this week denied Makk’s application for permanent residency as a spouse of an American citizen because the federal Defense of Marriage Act bans the federal government from treating same-sex partners as married.
The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems.
“I’m married just like any other married person in this country,” Wells said. “At this point, the government can come in and take my husband and deport him. It’s infuriating. It’s upsetting. I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married.”
The agency’s decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the decision said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.”
ICE’s director John Morton in June issued a memorandum that suggested DOMA-related cases might be put on the back-burner, especially if applicants would meet all other necessary criteria for citizenship. This call to prioritize cases did not, however, specifically mention LGBTs and as such its impact has been questioned.
Makk contends he meets all other criteria for citizenship and that he has always played by the rules when it comes to immigration law.
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.
The couple’s options from this point on are limited, and are even more complicated because of Wells’ poor health.
They must now decide whether Makk wishes to remain in the country illegally to file an appeal in this case — which appears unlikely to succeed — or consider a move back to Makk’s birth country Australia.
Group Immigration Equality has contacted California Democratic Sens. Dianne Feinstein and Barbara Boxer, and House Minority Leader Nancy Pelosi, D-San Francisco, and asked them to intervene in the case.
As a last resort legislators can introduce private legisation on behalf of specific couples so as to halt immigration proceedings against them, but such bills are certainly not routine.
Pelosi’s office has said it will “exhaust all appropriate immigration remedies” to try and help the couple.
Immigration Equality are also appealing directly to the Obama administration to intervene.
Until the Defense of Marriage Act is repealed, however, these sorts of cases will continue to occur.