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San Francisco Chronicle: DOMA demise allows gay spouse to immigrate

By Bob Egelko | San Francisco Chronicle

Bradford Wells and Anthony Makk spent an hour in a San Francisco immigration office this week and heard words that no federal official could have uttered until a couple of months ago: that, in the eyes of U.S. law, they’re a married couple.

“They verified that we have a real marriage. My application for a petition to have him immigrate as my spouse has been approved,” Wells, 57, said Tuesday from the Castro district apartment he shares with his 50-year-old husband. Makk is also Wells’ caregiver as Wells fights severe complications of AIDS.

There was no immediate action on the green card that would reclassify Makk from a visitor to a legal U.S. resident, but it seems like only a question of paperwork.

The government, at the Supreme Court‘s insistence, has changed its attitude toward couples like Wells and Makk. The document the couple seek would bear Makk’s name, but, as Wells observed, it would represent the government’s official acceptance of the two of them and their marriage.

“It means that I’m equal to every other American, with the same rights and responsibilities,” Wells said. “I’m no longer a subclass.”

Eligible for benefits

The same can be said of more than 100,000 legally married same-sex couples in the United States, including many thousands of binational couples.

The Supreme Court’s June 26 ruling striking down the core provision of the 1996 Defense of Marriage Act made them eligible for more than 1,000 federal benefits available to heterosexual spouses, including the right of a U.S. citizen to sponsor a spouse for legal immigration.

For Makk, a green card means more than U.S. residency and future citizenship. It would also let him travel to his native Australia to see family members without having to wait at least five years to return to the U.S. He hasn’t been to his homeland since his father’s funeral 2 1/2 years ago.

Wells and Makk have been together in San Francisco for more than 20 years, and got married in Massachusetts in 2004, two months after the state became the first to legalize same-sex marriage.

Attitude changed

“I used to make fun of married people,” said Wells, a former insurance company employee who was sure he would never marry. But after the Massachusetts breakthrough, he said, his own attitude changed, and he promptly proposed to Makk, who accepted. They traveled east, waited the required three days and were wed before returning home.

But Makk’s immigration status would become precarious seven years later. His visa as a visitor and real estate investor was about to expire and would not be renewed by immigration officials, who concluded he wanted to stay here. When he returned from Australia after his father’s funeral, an officer told him it was the last time he’d be allowed to re-enter the United States, said Tom Plummer, a lawyer with the gay rights group Immigration Equality.

Pelosi, Feinstein step in

An opposite-sex spouse could have gotten a green card for Makk after their marriage, but that option was ruled out by DOMA. Makk was on the verge of deportation when two San Francisco Democrats in Congress intervened.

Contacted by gay rights advocates, House Minority Leader Nancy Pelosi and Sen. Dianne Feinstein prevailed on immigration officials to defer deportation for two years. That was possible, in turn, because of new Obama administration guidelines that allowed officials to consider such factors as Makk’s family and caregiver status and his years of law-abiding U.S. residence.

DOMA struck down

But future deferrals were uncertain, and Makk was still ineligible for a green card because of DOMA. Then, in June, came the Supreme Court’s 5-4 ruling saying Congress exceeded federal authority and violated the constitutional guarantee of equality when it decided to deny federal benefits to same-sex spouses, while continuing to recognize other marriages performed under state laws.

The next stop for Wells and Makk was U.S. Citizenship and Immigration Services at 630 Sansome St.

“They asked how we met, did we know each other’s families, what date we were married,” Wells said of Tuesday’s interview. “We showed them pictures of the years we spent together.” Makk was fingerprinted for a criminal background check.

‘A bona fide marriage’

The immigration officer, who not long ago would have discounted their marital status, now told them “that this was a bona fide marriage and not just a green-card marriage, that we got married because we loved each other,” Wells said.

That status has a financial downside – because of California’s community-property laws, Wells said, he’s actually paying higher federal and state income taxes as a marital partner than he would as a single man. It’s a burden he bears willingly.

“I’m so happy to be a full American that I’m eager to (take on) higher responsibilities,” Wells said, speaking for the two of them. “I love my country. At the end of the day we put our differences aside and come together.”

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