Same-Sex Couples Face Stark Immigration Options, Especially For Older, Disabled Partners

Benjamin Anderson, 55, was born in the United States, served in the Coast Guard, and considers himself a strong patriot. He's moving to Italy next month, though, because his soon-to-be husband will not be granted legal status in the United States under the Defense of Marriage Act.

Anderson and partner Mattia Lumaca, 41, are among 28,500 same-sex couples with one U.S. citizen partner and one noncitizen partner, according to an analysis released on Friday by the University of California, Los Angeles' Williams Institute, which studies sexual orientation law and public policy. Even if they are legally married, these couples cannot petition for legal status for the noncitizen partner because same-sex marriage is not recognized by the federal government.

Moreover, as federal immigration enforcers begin to review some 300,000 deportation cases to close those deemed "low-priority," same-sex couples will likely not be considered in the same way as heterosexual couples, according to guidance issued to Immigration and Customs Enforcement lawyers on Thursday.

That leaves few options for couples like Anderson and Lumaca, who want to live together but can't risk overstaying Lumaca's visa. Anderson became ill while in the Coast Guard and has suffered health problems ever since, including diabetes and a heart condition. Lumaca serves as his primary caretaker, helping him to keep track of his insulin and other medications. So Anderson faced a hard decision: live apart from the man he loves or move to Italy, far from his adult son, the veterans hospitals he needs and his native country.

"I'm angry and I'm so sad that I'm being forced to leave. I have been given a terrible choice," he said. "I'm afraid that I'm going to go there and die, and I won't be with my family."

Ending his relationship with Lumaca or maintaining a long-distance marriage would be equally difficult, said Anderson.

"I'm really frightened," he said. "I don't know what's going to happen. But I'm not going to give up Mattia -- he's my life. I've waited my whole life for someone like him, and I'm not going to give him up."

Same-sex couples, particularly binational ones, are trapped in the policy tangles of the current administration, which has made some progress for gay rights while continuing to enforce the Defense of Marriage Act. The Obama administration will no longer legally defend the law, but it is still in place, meaning the federal government does not recognize same-sex marriages or provide those couples with the same benefits granted to heterosexual couples.

When the Obama administration announced in August that it would review pending deportation cases, senior officials said a same-sex partnership could be considered a strong tie to the United States, a factor that immigration agents may consider in deportation decisions. On Thursday, however, the Department of Homeland Security sent out guidelines on its deportation review process that omitted any explicit reference to same-sex partnerships as a potential reason to close deportation cases. Those that hold visas, like Lumaca, still face a government that does not formally recognize their marriage for the purposes of immigration.

Tim Smulian, a 65-year-old South African citizen, married Edwin Blesch, a 71-year-old U.S. citizen, four years ago. They live in Long Island, N.Y., in a home that they share. But because Smulian has only a tourist visa, which lasts no more than six months, he must leave the country at least once a year for a six-month period.

Blesch, who nearly always goes with Smulian, suffers from major health problems and visits a neurologist and a cardiologist three times per year. He said he cannot move out of the country permanently and lose his Medicare or access to specialists. The couple worry they will be separated during a health emergency. At one point, when Smulian was living in Canada awaiting eligibility for another visa, Blesch was injured in the United States.

"What I find difficult to convey to people ... is the anxiety involved of the threat of being taken away from one's life partner and spouse, especially as he is not in good health," Smulian said. "It's just something I cannot express to people who never faced this type of situation, how devastating this is."

Smulian has applied for an extension on his visa, allowing him to stay in the United States for extra months. But so far, they said they have heard nothing from immigration authorities. They are retired, have paid for their home and want some steadiness to their life, Blesch said.

"We're living on a tightwire wondering whether they are going to accept the extension or say, 'No, get out right away,' " Blesch said. "They keep you guessing, and it's very upsetting."