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August 22, 2014

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Overcoming immigration and same-sex issues in sight for some couples

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Leila Navidi

Partners Ivan Genchi, left, and Mauricio Fabian photographed in Las Vegas on Tuesday, July 23, 2013.

Bernice Blas and Andrea Hernandez met in high school in Los Angeles and became a couple shortly after graduating in 2003. They moved in together and their relationship grew, much like many other high school sweethearts.

Yet, while they shared the same home, they lived on opposite sides of a clear divide. Hernandez, now 27, was born in the United States and is a U.S. citizen. Blas, now 26, until recently was not legally in the country. When she was 9 years old, her mother brought her to California from Mexico.

For years, the couple was on the fringes, or completely outside, of official status — in more ways than one. Blas, one of the young immigrants educated in the United States known as Dreamers, watched plans for legalization stall out in Congress. Then, last year, the Obama administration announced the deferred action for childhood arrivals program, and she was able to get a work permit, driver’s license and Social Security number. The program is temporary, however, and was seen as a stopgap measure. Because of the federal Defense of Marriage Act, same-sex couples could not petition for an immigrant spouse to receive legal residency.

“It’s a constant roller coaster of emotions.” Blas said. “You get so excited when you hear something, and then when it doesn’t happen it’s very hard.”

Hernandez was powerless to help, unable to petition for residency for Blas.

“As her partner, it hurts,” Hernandez said. “There are those moments of depression. Every decision is harder. When we moved here we knew we were taking a risk because she was leaving a job.”

Nevertheless, in June they flew to Hawaii and were married, unofficially. When they landed at McCarran International Airport on June 26 the news was in: The Supreme Court had struck down parts of the Defense of Marriage Act, offering federal benefits to same-sex couples but leaving individual states to decide whether to sanction same-sex marriages.

For binational, same-sex couples such as Blas and Hernandez, the Supreme Court’s decision has jolted their lives with momentum after years of circling in a holding pattern. Some petitions for same-sex spouses already have been approved, but questions remain on how immigration agencies will apply the decision to different segments of immigration law until precedents are established.

“This doesn’t make it any easier to immigrate, but it puts same-sex couples and heterosexual couples on the same footing,” said immigration attorney Peter Ashman, president of the local chapter of the American Immigration Lawyers Association.

In 2011, a report from UCLA’s Williams Institute estimated the number of same-sex binational couples in the United States at 28,500. The organization Immigration Equality has put the number at 36,000

Ashman staged a community meeting July 18 at the Gay and Lesbian Community Center of Southern Nevada, where 15 to 20 people showed to ask questions about the process. For example, if the couple is married outside the country, will the United States accept the marriage as valid? The answer: Yes, if that country has legalized same-sex marriage.

“Immigration law is complex,” Ashman cautioned. “There are tons of rules, and every rule has an exception and every exception has exceptions.”

Like Blas and Hernandez, Las Vegans Mauricio Fabian and Ivan Genchi have been waiting for this moment for years.

Fabian, a U.S. citizen, met Genchi online in 2006 when Genchi lived in Guerrero, Mexico. Eventually Fabian traveled to meet Genchi in person. The two fell in love and planned to marry. Had DOMA not been in place, Fabian would have been able to petition for Genchi’s entry into the United States once they married. Genchi considered applying for a student visa, but they were struggling to gather the money needed to prove to immigration officials that he had sufficient means to care for himself once admitted to the United States.

Instead, without telling Fabian, in 2007 Genchi paid $1,000 to a “coyote” – a human smuggler – to get across the border at Mexicali, and he has been here ever since.

“When you fall in love, you think with the heart not with the head,” Genchi said.

Fabian follows the news on immigration policy and lesbian, gay, bisexual and transgender issues closely. He awoke at 6:30 a.m. on June 26, an hour earlier than normal, to hear the Supreme Court decision live.

“You stop and ask yourself, is this really happening?” Fabian said. “There are a lot of politicians that are against homosexuals and the LGBT community. They don’t realize that they hurt our families. They don’t realize that they really damage our lives on a daily basis. You never know what to expect from the government and what they will decide. … This changed our lives.”

On July 18 the two men, who own a house not too far from the Spaghetti Bowl, drove to Apple Valley, Calif., one of the closest places to Las Vegas to get a legal same-sex marriage, and were officially wed.

Genchi was pursuing an asylum case based on prejudice and persecution of homosexuals in Mexico. A little over half of all asylum cases are granted in the United States.

“There is prejudice everywhere, but in Mexico it’s more violent, I would say,” Genchi said. “When you encounter someone in Mexico who doesn’t accept who you are, they try to hurt you physically. Here they just bully you.”

Now, he will seek a waiver available to immediate relatives of U.S. citizens who entered the country illegally. If the waiver is granted, Fabian can petition for Genchi’s green card. Fabian also has been paying their mortgage and bills on his salary as a food server at a Strip resort, and Genchi is eager to find work and do his part.

Blas, on the other hand, is now allowed to leave and re-enter the country, thanks to deferred action. When she does, she will no longer need a waiver for her original illegal entry. But then, Hernandez will be able to petition for her spouse just as heterosexual couples have done for decades.

An estimated 50 percent of same-sex binational couples are raising children, and Blas and Hernandez have an 18-month-old foster child they have been raising for more than a year. Fabian and Genchi plan to adopt in the future, but not until they have everything in place, including a college fund.

Most of all, they are excited for the opportunities for the future. Blas had already been employed as a clerical worker. Since receiving her work permit she was able to find a better paying job in the field. Now, she plans to go to college to study accounting.

Genchi spent the first few years in Las Vegas learning English and is now attending College of Southern Nevada. He plans to study architecture at UNLV.

Shackled to a travel radius of wherever she could drive because of her lack of legal residency, Blas is now hooked on flying. Once she received her work permit and license, she and Hernandez took a short trip to Seattle just because they could. They flew to Hawaii, where same-sex marriages are not legally sanctioned, for a ceremony, and next month they’ll fly to New York to get legally married.

There is some concern in immigration legal circles that same-sex couples residing in a state that does not recognize same-sex marriage, such as Nevada, may be denied residency. However, a decision from the Board of Immigration Appeals on July 17 indicated that emphasis would be placed on the where the marriage was conducted, not the state of residence. The Department of Homeland Security, after the Supreme Court decision, issued directives that mirrored the board’s interpretation.

Same-sex couples also should be eligible now for fiancé visas, cancellation of removal based on their marriage to a U.S. citizen, and can file to stay in the country while petitioning for a green card if they are married to a U.S. citizen.

However, until U.S. Citizenship and Immigration Services and immigration courts start making decisions, nothing is concrete. The United States is especially careful in issuing tourist visas to single men who do not show substantial proof, such as a good job or college enrollment, that they will return to their home country.

“Ex-pats living abroad who have same-sex spouses have found it very difficult to get a tourist visa for their spouse because they don’t qualify on an independent basis,” Ashman said. “Will it make it easier to get a tourist visa? I don’t know. How will they look at the fiancé visa? Because there hasn’t been any litigation or case decisions on that, we’ll have to see what they do.”

Ashman did emphasize he believes same sex couples will be treated the same as heterosexual couples, who still go through an extensive process that includes in-person interviews to make sure the marriage is “bona fide.”

“This is the direction the country and the law are moving in,” Ashman said. “If they do deny legitimate petitions, there will be a very active and well-funded effort to litigate any resistance to what we believe is the law.”

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