New Deportation Rules Give Boost To Gay Rights

Anthony Makk (right)  and husband Bradford Wells at their San  Francisco home on Aug. 8. Though legally married in 2004,  Makk faces deportation back to his native Australia.

Anthony Makk (right) and husband Bradford Wells at their San Francisco home on Aug. 8. Though legally married in 2004, Makk faces deportation back to his native Australia. Noah Berger/San Francisco Chronicle via Polaris Images hide caption

itoggle caption Noah Berger/San Francisco Chronicle via Polaris Images

Thousands of same-sex married couples now have hopes of staying together in the U.S. thanks to a change in deportation policy. The government says it will now prioritize deportations, giving lower priority to those with families in the U.S.

And the Obama administration has included same-sex couples in its definition of family.

Left In Legal Limbo

Bradford Wells, 55, a longtime resident of San Francisco, has good days and bad days.

"It's just a part of chronic illness," he says. "I've been battling this disease now for more than half of my life."

Wells has AIDS and a host of related ailments. His primary caregiver is the man he married seven years ago, Anthony John Makk, a citizen of Australia, who entered this country legally. They got married in Worcester, Mass., on July 22, 2004.

Sitting in their backyard in San Francisco's Castro District, Makk says as a spouse of a U.S. citizen, he has applied for a green card. But he's been rejected because under the Defense of Marriage Act, or DOMA, the federal government doesn't recognize their marriage.

So Makk is appealing, but his permission to stay here expires this week. And even though he has not yet received a formal deportation order, he's left in a legal limbo.

For Wells, the threat of losing his husband is more than unsettling.

"We're legally married," he says. "I believe we should have the same legal rights as every other married couple in this country. I don't want to live under a deportation order. I don't want my family under a deportation order."

But Wells' cloud of uncertainty may soon lift. Last week, the Department of Homeland Security announced that it will review all pending deportation proceeding and will emphasize cases of criminal offenders. Less priority will be given to deporting individuals who came here legally, have strong family and community ties, and are the primary caretakers of a U.S. citizen. An Immigration and Customs Enforcement spokesman says that it can include gay and lesbian married couples.

"There's no doubt that the announcement by DHS last week that they were including gay and lesbian families among the families that they intend to help is a step in the right direction," says Steve Rawls, a spokesman for Immigration Equality, a gay group that supports Makk's efforts to get a green card.

DOMA Deportations

This week the government took another step in that direction when it dropped deportation proceedings against a Venezuelan man who had overstayed his visa and married an American man last year in Connecticut.

That was a victory for attorney Lavi Soloway, who leads a campaign to end what he calls DOMA deportations.

"And what that means is deportations of individuals who are married to gay or lesbian Americans — and who would be eligible for green cards based on those marriages if not for the Defense of Marriage Act," he says.

The Obama administration already has said that it considers DOMA to be unconstitutional. But it remains the law.

Meanwhile, immigration control groups are blasting the new Obama policy on deportations.

"Congress has written the immigration laws of this country. It's the responsibility of the executive branch to carry them out, whether they happen to agree with them or not," says Ira Mehlman, a spokesman for the Federation for American Immigration Reform. He says his objection has nothing to do with the sexual orientation of the people whose cases are being dismissed.

"It has to do with what we consider an unconstitutional policy on the part of the administration to simply drop cases that are in process under the guise of setting priorities," he says.

As for Bradford Wells, he says he is trying to be optimistic that his husband, Anthony Makk, will be allowed to stay here. But thus far they have not heard from the government.

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