by Shaun Knittel -
SGN Associate Editor
Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, wed seven years ago in Massachusetts. For nearly 19 years, the same-sex couple has lived together in the Castro District of San Francisco.
Late last month, due to the Defense of Marriage Act (DOMA), the Obama administration denied immigration benefits - ultimately rejecting Makk's application to be considered for permanent residency as the spouse of an American citizen.
DOMA, the 1996 law that denies all federal benefits to same-sex couples, has struck again.
The decision, issued July 26, orders Makk to depart the United States by August 25. Makk is the sole caregiver for Wells, who has severe health problems.
'I'm married just like any other person in this country,' said Wells. '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.'
Wells pleaded with Homeland Security Secretary Janet Napolitano and President Obama to intervene - to no avail.
'Anyone can identify with the horror of having the government come in and destroy your family when you've done nothing wrong, and you've done everything right, followed every law,' Wells said.
Makk was denied an I-130 visa, otherwise known as a spousal petition, which would allow him to apply for permanent U.S. residency.
The decision read, 'The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship. For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.'
The drama, and what many would consider the injustice, surrounding DOMA has intensified in 2011. Obama and Attorney General Eric Holder decided DOMA was unconstitutional on equal protection grounds and announced that the administration would no longer defend it in court. House Republicans hired an outside counsel to defend it instead. In direct contrast with the administration's constitutional decision, they said they would continue to enforce the law, while exercising discretion on a case-by-case basis.
In June, ICE issued a memorandum that offered guidance to agents in making enforcement decisions. Because no law enforcement agency can pursue every case, they often prioritize where to obligate the government's limited resources.
The memorandum said prosecutions should seek to promote 'national security, border security, public safety, and the integrity of the immigration system.'
Makk meets nearly all of the circumstances specified in the memorandum: he's the spouse of an American citizen, the primary caretaker of a citizen, has no criminal history, and has legally resided in the country under various visas for many years.
The only thing he has violated, as far as the nation's immigration officials are concerned, is DOMA.
Makk gave up a professional career in Australia to be with Wells, started a business in San Francisco, and invested in rental property to meet various visa requirements. For nearly 20 years, he has never lived in the country illegally.
The alternatives for the married men are poor. Wells could move to Australia, but in doing so he would have to give up his extensive medical care and insurance in the U.S.
Immigration Equality spokesman Steve Ralls says his group is appealing to the Obama administration to exercise discretion in this individual case and allow Makk to remain in the U.S.
Drew Hammill, a spokesman for Rep. Nancy Pelosi, D-San Francisco, said Pelosi has contacted immigration officials on behalf of the couple and 'will be working to exhaust all appropriate immigration remedies that are open to pursue.'
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