NEW: Deportation on hold for Alfonso Garcia, an undocumented immigrant
He and Brian Willingham, 37, were married in New York
The couple says Garcia, 35, should be allowed to stay here as the husband of U.S. citizen
Defense of Marriage Act defines marriage as between opposite-sex couples
A federal immigration court judge in San Francisco put a deportation proceeding on hold Friday for a gay California man who is an undocumented immigrant and married to a U.S. citizen, the couple’s attorney said.
Alfonso Garcia, 35, who came to the United States as a boy with his parents, and his husband, Brian Willingham, 37, are petitioning the federal immigration service for legal residency based on their marriage, said attorney Lavi Soloway.
The judge put Garcia’s deportation proceeding on hold while Garcia’s legal residency, or green card, application is being processed, Soloway said.
The next immigration court hearing is October 25, the attorney said.
The couple lawfully married in New York and are registered domestic partners in California living in the San Francisco Bay area, but the federal immigration court doesn’t recognize gay marriage under the federal Defense of Marriage Act, which defines marriage as between opposite sex couples, Soloway said.
The federal law is being challenged on constitutional grounds, with rulings expected this summer in federal appeals court, but the case hasn’t reached the U.S. Supreme Court.
The couple is hoping the federal marriage law is nullified before the October 25 hearing, Soloway said.
“If they were an opposite-sex couple, we wouldn’t have this discussion right now,” Soloway said of Garcia’s efforts to secure legal U.S. residency as a man married to a U.S. citizen.
“What this case is about is a Mexican man who was brought to the United States as a child and has lived here for 20 years, as has his whole family,” Soloway said. “But he doesn’t have lawful status.”
“We have a whole campaign around this case and other cases like it,” Soloway said, referring to the Stop the Deportations campaign and its website, in which gay and lesbian bi-national couples are fighting deportation, separation and exile caused by the Defense of Marriage Act and U.S. immigration law.
Garcia’s undocumented status was discovered during a routine traffic stop in July, which led to a background check, the couple said. Garcia’s parents are legal residents applying for U.S. citizenship, the attorney said.
Garcia and Willingham met in October 2001.
“As a gay American citizen, the federal government offers me zero, zilch, nada, null access to the federal rights that all married couples have,” Willingham said on the couple’s Web page. “This is not an issue of separate but equal. There are no separate federal rights for married gay couples. There are no rights at all. This is not a front of the bus, back of the bus issue. This is the federal government telling us to get the hell off of the bus.”
President Barack Obama has called for a legislative repeal of the Defense of Marriage Act, and while Democrats on the Senate Judiciary Committee voted last year to send a repeal to the full Senate floor, the measure is seen as having no chance of getting passed by the Republican-led House.
If Garcia is deported, he will be barred from returning to the United States for 10 years, his attorney said.
“I’ve spent most of my life in the United States. This country is my home, and Brian is my husband. I don’t want to lose everything we have built together and be told I can’t come back to the U.S. for 10 years. I just want to know we can be together. I just want to know the solemn oath we made to one another will count in the eyes of the law,” Garcia said in a statement.