Bradford Wells breathed a sigh of relief this week following the news that his Australian-native spouse, Anthony Makk, won’t be forced to leave the United States anytime soon.
“I’m absolutely elated,” Wells said. “The pressing issue of my family being destroyed has been dealt with for the time being.”
On Wednesday, Wells, 56, received a letter from U.S. Customs & Immigration Services that potential deportation action on Makk, 49, won’t happen for at least two years.
Wells said he received the news while watching the Republican presidential candidates on television and feeling discouraged by their anti-gay rhetoric when he received an unexpected phone call.
“It was Nancy Pelosi calling,” Wells said. “She called to tell me that the problem had been solved and Anthony had been given deferred action and that my family would be together. The deferred action was good for two years. That gave me such a feeling of joy and relief.”
Wells and Makk met with House Minority Leader Pelosi (D-Calif.) to discuss their situation in D.C. during an October meeting, according to The Advocate.
Makk said he was “over the moon happy” upon hearing about the deferred action because it means his efforts to stay in the United States haven’t been in vain.
“To be able to remain here legally has been important to us, and it always has been,” Makk said. “The fact that they don’t grant this [deferred action] to many people at all makes this even more special.”
Under current immigration law, straight Americans can sponsor their foreign spouses for residency in the United States through a marriage-based green card application, but the same option isn’t available to gay bi-national couples because the Defense of Marriage Act prohibits federal recognition of same-sex marriage.
Consequently, foreign nationals in same-sex marriages could be deported if they’re undocumented or upon the expiration of their green cards. Makk was in the United States from 2000 to 2010 under a business visa, but after his company shut down, he lost his visa status and faced separation from the country.
For Wells, the prospect of being separated from his spouse was distressing because he has AIDS and depends on his spouse for care.
“He helps me get through when things just seem too difficult for me to deal with,” Wells said. “Sometimes I get so sick, I can’t deal with them … I’ve been in a lot of pain lately, so walking has been very difficult. He helps me out with that.”
Wells and Makk became a high-profile case when the San Francisco Chronicle profiled them in July and reported on the U.S. Customs & Immigration Service’s decision to deny the couple a green card. Even though the couple was married in Massachusetts in 2004 and has been together 19 years, they were unable to receive a green card because of DOMA.
But the letter dated Jan. 4 from U.S. Customs & Immigration Services states that Makk has been granted temporary deferment and won’t have to worry about deportation for that period of time.
“This is to advise you that effective today, January 4, 2012, you have been granted deferred action for a period of two years,” the letter states. “This action will expire on January 3, 2014.”
The letter explains that the deferred action is the result of prosecutorial discretion being exercised by U.S. Citizenship & Immigration Services, but doesn’t confer or alter any immigration status.
Still, the letter also states that as a person granted deferred action, Makk can apply for employment authorization in the United States. Additionally, he’s eligible for an extension of this deferred action beyond the two years that have already been allotted.
USCIS didn’t respond to the Washington Blade’s request for comment on why Wells and Makk were given deferred action in their case.
The decision falls within the scope of the prosecutorial discretion memo on deportations that the Department of Homeland Security issued in June. Additionally, the move is consistent with the Obama administration’s plan announced in August to take low-priority cases out of the deportation pipeline on a case-by-case basis.
Steve Ralls, a spokesperson for Immigration Equality, which is handling the Wells and Makk case, said the action marks the first time the administration has moved to protect a bi-national couple before the start of removal proceedings.
“For the first time, the federal government has intervened, prior to the initiation of removal proceedings, to grant real, tangible relief to a married bi-national couple,” Ralls said. “The decision to grant Anthony deferred action, which can be renewed beyond the initial two years if needed, is a welcome change from the uncertainty and threats of separation that have hung over this family, so and many others, in the past.”
In a statement, Pelosi called the deferred action a “positive resolution of Anthony’s immigration petition” and a “personal victory” for Makk and Wells.
“Anthony would have faced deportation because of the discriminatory Defense of Marriage Act, even though he has lived in the United States for more than 20 years, has no criminal history, has never lived here illegally and is the primary caregiver to his husband,” Pelosi said. “The Obama Administration’s recent efforts to prioritize immigration enforcement for the removal of criminals and others who pose a threat to national security helped pave the way for today’s good news.”
Pelosi wasn’t the only lawmaker who helped. Wells said Sen. Dianne Feinstein (D-Calif.) and gay State Sen. Mark Leno, who represents San Francisco in the California Legislature, also had roles in pressuring the U.S. government to allow his partner to remain in the United States.
Even though USCIS has taken action, Wells said he isn’t sure whether the remedy will be enough because Makk is unable to leave the country under his current status.
“”I know that Anthony cannot leave the country and come back,” Wells said. “That’s something that still worries me. If something should happen to a family member in Australia, if one of his relatives dies, or if one his relatives gets really sick, he will not be able to go back to his family there.”
Immigration Equality’s Ralls said the administration can take further action to protect other bi-national gay couples in similar situations to Wells and Makk.
“While the best solution remains a policy that would provide lesbian and gay spouses, just like straight spoues, an opportunity to obtain a green card, this action is significant nonetheless,” Ralls said. “Moving forward, it should be repeated for other couples until DOMA is repealed or UAFA is law.”