DEPORTED: Forced into Exile, Tom & Emilio Fight to Return But DOMA Stands in Their Way

Tom and Emilio met in 2001 in New York City. A year earlier, like so many other gay men from his country, Emilio had left Venezuela in search of a better life in the U.S.  As Tom and Emilio fell in love and set out to plan a future together as a couple, they abruptly ran into the cold, hard brick wall reality of anti-gay discrimination in U.S. immigration law. For nine long years they have been deprived of a basic right that most families take for granted. Tom and Emilio have been denied the right to live together in this country. They have been denied the opportunity to build a life together with the support of Tom’s supportive and loving extended family in New Jersey. Although Tom is an American citizen, he and his husband, Emilio, have been forced to start a new life in Canada far from Tom’s family in New Jersey.  And because of Emilio was deprived of the usual path to lawful status, sponsorship by his American spouse, he was deported from the United States. That deportation means that Tom and Emilio cannot return for at least 10 years.

Tom writes:

On our first date at the VIP Diner in Jersey City, Emilio explained at some length the process of employment-based sponsorship. He explained to me that he was trying to obtain permanent resident status (a “green card”).  The complexities of the laws were new to me. As an American I had no idea how difficult immigration was.  As Emilio described the challenges he faced because of American immigration laws I could not have possibly imagined that I would be embarking on the bitter realization of my own second-class citizenship. In the not too distant future, my country’s government would spend a great deal of time, money and energy trying to rip my family apart.

After Emilio lost his work sponsorship we looked into other options. It was then that I learned that from the perspective of the American government, Emilio and I were effectively two strangers under the law. Even though over the years we owned a home together, shared our income and expenses and showed our commitment by entering into a New Jersey Domestic Partnership and a Civil Union, none of that mattered. During the six years of endless hearings with the Immigration Service and the Immigration Court in Newark, New Jersey I was never given the opportunity to do what every other American citizen can do quite simply for his or her non-citizen spouse: I was never able to sponsor Emilio for a green card. Only because we were a gay couple was our committed relationship denied recognition.  The frustration we felt at this time was overwhelming.

Ironically, Newark is the city where my parents were born and where their immigrant ancestors came to start a new life in the 1800s. Now, generations later, in that same city, Emilio and I fought in vain to keep our family together.  Emilio decided to apply for asylum because of his fear of persecution as a gay man from Venezuela.  I was not even allowed in the room when Emilio testified in his asylum hearings. The government prosecutor’s position was that I was of no relation to Emilio and therefore both my presence and my proposed my testimony were irrelevant to the case.  The cruelty seemed gratuitous at times.  The stress and aggravation was driving us both crazy; it’s hard to live a normal life when every official letter in the mailbox or unexpected knock on the door arouses the fear that my own government is going to take my life partner and soul mate away from me.  Even today, years later, I still feel residual anxiety when I receive a notice for a certified letter. The impact of those days have not yet receded. To add insult to the injury we were paying for this mental torture with our taxes and paying for our defense with paycheck after paycheck.

After years of hearings we finally had reason to celebrate. We were joyful when the immigration judge ruled in our favor and granted Emilio asylum.   This meant that Emilio could stay in the United States indefinitely and in a year he would be able to apply for a green card.  In a cruel twist of fate, however, it turned out that our joy was premature. The government prosecutor appealed the Immigration Judge’s decision. With our energy and finances drained, we could not fight any longer.  For years we had hoped to be able to live a normal life together in the United States but the mental anguish and practical considerations of years of legal battles compelled us to abandon hope.  We quite simply could not take it any more.  We decided to abandon the case and applied for residency in Canada. The way I saw it, I was choosing my spouse over my country. I hated this choice, but I was forced to make it.  Anyone reading this who has ever done it will know that moving to another country is not an easy task. We had to leave everything familiar to us: our family, friends, neighbors, and especially our beloved home that we had so proudly worked on together every weekend.  All, gone.

We have tried to remain optimistic. We started a new wonderful life together in Canada. We are fortunate to live in such a progressive city. We love living in Toronto and shortly after arriving here we got married at the top of the CN Tower. The symbol of our new home high in the sky. We are proudly and happily married and yet our marriage certificate does not allow me to sponsor Emilio.

You would think once we moved to Canada in December 2007 that all our problem with the United States government would be over. But that would not be the case.  U.S. law poured salt into our wounds by banning Emilio from re-entering the US for ten years, on the grounds that his departure in the midst of the government’s appeal counted as a self-deportation.   The idea that we have been forced out for at least ten years or possibly forever, sickens me. This was never more true than a few weeks ago when we watched as the Ugandan legislator, David Bahati, obtained a visitor’s visa to visit the US in December. Bahati is the  author and proponent of the infamous bill in the Ugandan Parliament that calls for gay people to face life imprisonment or, even, execution if they are convicted of having practiced homosexuality.  And our government gave Mr. Bahati a visitor visa, despite protests to Secretary of State Clinton to deny his application because of his advocacy of anti-gay hate and capital punishment for gays and lesbians. And at the same time, my darling spouse, Emilio, who has the kindest heart of any person that I know, is unable to obtain that same visitor’s visa.  We are unable to return to New Jersey for Christmas or Thanksgiving. We cannot visit my siblings or parents. It is all off-limits to us.  I have more rights as a permanent resident in Canada than I ever had as a United States citizen.

As we enter the new year, Emilio and I are now completing our applications for Canadian citizenship. This in a way caps our nearly decade long quest for equality. As Canadians we will not suffer the legal discrimination by the federal government that all gay Americans are forced to endure. I hope one day that we will return to the United States, equal under the law.

Recently we joined the effort to Stop The Deportations of gay and lesbian spouses of American citizens. With the guidance of my attorney, I filed a Petition for Alien Relative for Emilio. We intend to advocate for the approval of that petition by reaching out to our elected officials in New Jersey.  We understand that the federal government takes the position that it cannot recognize our legal, valid marriage. However, there is a higher principle of fairness and justice that will eventually bring a new reality to bear. The Defense of Marriage Act which dictates that the U.S. government cannot recognize the marriages of gay and lesbian couples, must be fought resolutely and aggressively and it must be defeated. To be sure that no other couple ever goes through the hell we experienced, to be sure that no more families are torn apart, and to be sure that all Americans are treated equally regardless of their sexual orientation, we must engage in this struggle.

As we begin a new year living in forced exile simply because we are gay, we continue to fight so that we can return to our life in the United States.  We urge those reading our story to learn how you can get involved to support this effort.

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  • Doug

    I have followed your odyssey for a while now, sharing your frustration with the US gov't yet happy that you have found a place to live life to its fullest. Now, reading in more detail exactly what you two have gone through, my eyes are watering as I understand part of your journey but not quite all, until now. I had no idea that you are basically banned from the US for 10 years.

    January 4, 2011
  • Anonymous

    Good luck on your Petition for Emilio. Your story is especially disturbing considering the massive amount of marriage fraud perpetrated by straight (or supposedly straight) illegal aliens. The US government does not give USCIS the resources to fight this fraud, but they have the resources to persecute couples like you, though. Every fraudulent green card that is approved is a slap in the face to every gay US citizen. Please fight your I-130 denial all the way to the Supreme Court so we can destroy DOMA!

    January 7, 2011
  • @Anonymous – and consider how many fraudulent green cards would be stopped if gay marriage were allowed because as it now stands many gays I know are forced to use fraudulent marriage simply to slap the US govt in the face for policies that deport and separate couples like Tom & Emilio.

    To the couple, I am grateful for fair nations like Canada and hope one day you will be able to tell your story to the US Congress in support of DOMA repeal and be able to return home.

    January 11, 2011
  • Rex Banks

    Dear Tom and Emilio – Thank you for posting your story – which is similar to ours. I am American and my partner is Israeli – we are also living in Toronto (Both now Canadians and married). It would be so nice to meet you guys in person! Feel free to email me at [email protected] We’ve never met another couple “in person” who has taken this journey and truly understands.

    March 20, 2012

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.