While some view the United States’ Defense of Marriage Act as being on its last legs, Costa Rican immigrant David González knows it is still standing. Some three years after marrying his spouse, González is now facing deportation back to Costa Rica because of this contentious law.
His problem lies in the fact that he is married to a man. While marriage to a U.S. resident is often considered to be the fast track to U.S. citizenship, the Defense of Marriage Act, commonly known as DOMA, does not recognize marriage between same- sex couples in the United States.
González was legally married to his husband Mario Ramírez in California in 2008. While the state of California considers the marriage valid, González and his lawyer John Nechman have to take their case before a U.S. federal court judge on Aug. 31 in Houston, Texas. Nechman said he and his client are not looking for international attention for the case. He said they are trying to keep González in the U.S. with his husband and away from Costa Rica, where González said he fears persecution.
“There is a lot of crime in Costa Rica that goes undetected, and since Costa Rica is presented as a paradise, Ticos and foreign persons do not believe persons like me,” González said. “I read the comments in [the Costa Rican daily] La Nación when my story got published, and just read the comments other Costa Ricans made. It is so shameful, but I know that is not the view of every Costa Rican.”
Like millions of other immigrants currently living in the United States, González overstayed his travel visa. Nechman said González doesn’t excuse this fact. However his client entered the country legally and broke no other laws. Thus, Nechman said González should be shown the same consideration that illegal heterosexual immigrants receive after being married to a U.S. citizen: leniency.
If González is allowed to remain in the U.S., Nechman said it would be only the third time a homosexual immigrant has had a deportation deferred because of marriage to a U.S. resident. If the judge rules against González, Nechman and González said they would continue fighting through all legal means available.
Nechman said González’s case originally came to the attention of U.S. authorities near the Mexican border in California several years after the two men were married. The couple was on a trip to San Diego and happened to cross an inland checkpoint on U.S. Interstate 5.
“Because it’s a busy checkpoint, it is often closed,” said Nechman, who used to live and commute in the southern California area. “Sometimes it can cause traffic jams up to two miles back.”
That day, the checkpoint was not closed, and González was identified as being an illegal resident.
“They checked his immigration status and found he was here illegally,” Nechman said. “His case went before the judge. He is not a permanent resident, and there is virtually no relief against people for deportation.”
Nechman said one of the few types of relief illegal immigrants apply for is called Cancellation of Removal. This process requires a qualifying relative who is a U.S. citizen to sponsor the immigrant. Because González’s marriage to his husband is technically not valid under DOMA, his husband does not count as a qualifying relative, and González has been unable to get the relief others have access to.
“The United States is a leader in civil rights and human rights, yet has fallen behind on gay rights,” González said. “Moralist and biblical fundamentalists have been successful in making many gay and lesbian people suffer. Christian values should be the opposite.”
Shortly after the hearing, González and his husband moved to Houston to avoid the economic depression that hit California. Nechman said while many people perceive Texas to be the last place an illegal, Latino, homosexual immigrant would want to have his case heard, the hearings so far in Houston have been balanced and in many ways favorable for González.
“Here in Houston we just elected the first lesbian mayor,” Nechman said. “The judge for our case has so far been totally admirable; he wasn’t just for us, and he listened to both sides. He couldn’t have been more understanding.”
González’s case was reset to Aug. 31 based on a technicality. “They said his fingerprints had gone stale,” said Nechman, explaining that fingerprints more than 15 months old are considered out-of-date. “We think the judge reset the case to give us an opportunity to discuss an agreement with the government where the court would terminate the proceedings.”
If the court does terminate the proceedings, Nechman said González would be able to live with his husband but won’t receive a work card or a green card.
“It’s a fairness issue; it is becoming clearer and clearer that the discrimination of gay couples is an embarrassment,” Nechman said. “There have been briefings in some courts that say DOMA is unconstitutional; the president of the United States said DOMA is unconstitutional. We are in a hypocritical situation now.”
Nechman said officials working for the U.S. Immigration and Customs Enforcement (ICE) have the ability to terminate the case.
“If ICE goes to the judge and says this is not a serious case for us, the judge could potentially defer the case to Immigration and Naturalization Services to handle,” Nechman said. “But because this case involves two men it is a tough pill for a lot of people to swallow.”
Nechman said the U.S. position on recognizing gay marriage is especially embarrassing because of the country’s reputation as a civil rights leader.
“There are 21 countries that allow for citizens to sponsor same-sex partners. Some people think the U.S. is a civil rights leader, … but we are not the civil rights leader when it comes to LGBT,” he said. “Hopefully we will be moving closer towards it.”
Costa Rica is also often thought of as a world leader in rights issues, said Yashin Castrillo, a Costa Rican lawyer and one of the country’s leading activists for gay rights.
“Costa Rica is a country that takes great pri-de on being an example to the world on human rights issues,” he said. “An issue like this has yet to be understood, at least by most people.”
In 2003, Castrillo filed a lawsuit to address the unconstitutionality of same-sex relationships in Costa Rica. While the Constitutional Chamber of the Supreme Court (Sala IV) voted 5-2 against the lawsuit in 2006, Castrillo said the fact that there were two votes in favor showed progress for same-sex couples. He said what is going on in the U.S. in terms of González’s case is similar to what is going on in Costa Rica. The judiciary here is starting to take human rights of homosexuals into consideration, he said. Yet currently in Costa Rica, same-sex partners do not have a right to their partner’s pension or benefits. In addition there isn’t monetary reconciliation for divorce. All of these are human rights, and none of them are currently granted to same-sex partnerships, he said (TT, Aug. 27, 2010).
“The human rights debate, especially for gays is constantly changing,” he said during a recent interview. “Every time an issue like this comes to the attention of the public, people began to see that human rights are being withheld from gay men and women in countries where this should not be the case.”
While the judiciaries of both countries are starting to take the issue of gay rights into heavier consideration, González said the reality is still unfavorable for gay men and women.
“Both countries’ governments have systematically been discriminating against gay persons and same-sex couples for decades based on religious arguments, but [they] make it look like they can discriminate against us based on governments’ interests and for the sake of children,” he said.
For González, the goal of equality remains a struggle for the future. For now, he said he wants the same consideration that the U.S. government gives to other immigrants married to U.S. residents.
“We are not asking Texas or any other state to recognize our marriage. [We’re asking] the federal government. Passing the Marriage Act will allow the federal government to protect us, but will not require all the states to recognize us.”