Kerry pushes asylum status for gay man

The immigration case of Brazilian Genesio "Junior" Oliveira and his husband, Tim Coco of Haverhill, has once again moved the issue of LGBT immigration discrimination into the national media spotlight, but it remains to be seen whether their case will lead to any substantive gains for bi-national same-sex couples.

Sen. John Kerry brought renewed attention to the case last week after he wrote a letter to Attorney General Eric Holder, urging him to reopen Oliveira's rejected asylum petition; Oliveira applied for asylum in 2002, saying he had been raped and attacked by government officials and that he feared persecution in his country for being gay, but his petition was denied. Oliveira and Coco, who were married in 2004, are also challenging the federal Defense of Marriage Act (DOMA), which prevents Oliveira from immigrating to the United States as Coco's spouse, but other LGBT advocacy groups have declined to get involved with that suit.

The publicity around Coco and Oliveira's case comes as LGBT advocates push for a legislative solution to the problems faced by bi-national same-sex couples. Last month Rep. Jerrold Nadler (D-N.Y.) and Sen. Patrick Leahy (D-Vt.) filed the Uniting American Families Act (UAFA), which would allow Americans to sponsor their same-sex partners for immigration purposes, just as heterosexuals are allowed to sponsor their spouses. The bill has the backing of the advocacy groups Human Rights Campaign (HRC) and Immigration Equality. Yet advocates and lawmakers believe the prospects of passing UAFA in the short term are slim.

In a statement to Bay Windows Kerry wrote that he believes there is a better chance of convincing Holder's office to review Oliveira's asylum case than there was under former President George W. Bush's administration.

"Start with the obvious - this is no longer the Justice Department under John Ashcroft or Alberto Gonzales. It's a hell of a lot more friendly administration for all of us. There's a level of common sense and compassion in the building now that wasn't there before. It's also a less ideological Department of Justice, which is partly why I aimed my case at facts that are compelling: Junior's asylum case is legitimate," wrote Kerry. "I opposed DOMA from day one, and I support legislation to change the law so that homosexual couples are granted the same rights in immigration cases as heterosexual couples. But the beauty of our case to Attorney General Holder, from Tim Coco's perspective, is that it doesn't require overturning federal law, which is a long, tough process. We're simply asking that fairness, justice, and compassion be served in this case. Do I hope it helps bring attention to our push for broad changes to the law? Of course. But priority number one is reuniting Junior and Tim now, with no further delay."

Kerry's letter to Holder explains that even though Judge Francis Cramer, who originally heard Oliveira's asylum petition, found his testimony "credible" and his fear of being victimized in Brazil "genuine," Cramer argued that Oliveira "was never physically harmed" despite his rape. According to a copy of Cramer's opinion, Cramer also cited two visits that Oliveira made to Brazil in the eight years after he had moved out of the country - one to attend his father's funeral - as evidence that Oliveira did not face likely harm if he returned home.

The couple originally met seven years ago when Oliveira was vacationing in the United States. Oliveira, who had been living in Haverhill with Coco after they married, voluntarily returned to Brazil in 2007 after his appeal of the asylum ruling was rejected.

Coco said that Oliveira fears for his safety in Brazil, and the couple has kept the location of Oliveira's Brazilian home a secret. He praised Kerry's efforts to reopen Oliveira's asylum case, but he also said he worries that the increased media attention about his case in Brazil could put Oliveira in danger. Coco said he communicates regularly with Oliveira via Internet video chats, and last year they vacationed together in England over Christmas and New Year's Day.

While they hope that Holder will reopen Oliveira's asylum request, they are also trying to win him reentry to the United States by challenging DOMA in federal court. Coco filed an I-130 petition in March 2008 with U.S. Immigration and Immigration Services to allow Oliveira to immigrate to the United States as an "alien relative," but that petition was denied last month because under DOMA the couple is not considered married for immigration purposes. Coco filed an appeal with the Board of Immigration Appeals, challenging the constitutionality of DOMA, but he expects the appeal to be rejected as well. He said once he exhausts his legal options in the immigration appeals process he believes he will be able to get the case heard in federal court.

"There's no way the appeals court could reject the appeal if we achieve exhaustion," said Coco.

Gay and Lesbian Advocates and Defenders (GLAD) filed its own DOMA challenge in federal court earlier this month, arguing about unequal treatment in the areas of pensions, taxes, Social Security and passports, but not immigration. Coco said GLAD declined to get involved in their case because they did not want to bring up immigration issues in their DOMA challenge. But he is hopeful that his own case will convince the courts of DOMA's unconstitutionality.

"At the risk of sounding mean, our case is hopefully the triumph of love over money. GLAD's cases are all about getting money, whether it's Social Security, tax benefits, pensions. Our case is about being together, which is pretty basic. And as usual, except for Sen. Kerry, we have been abandoned by all the organizations we expect to help us," said Coco. He said GLAD, Immigration Equality and the American Civil Liberties Union all declined to get involved in the case.

Carisa Cunningham, a spokesperson for GLAD, said that while the advocacy law firm declined to represent Coco and Oliveira, GLAD attorneys Mary Bonauto and Gary Buseck have met with Coco and spoken to him by phone, helping him research legal issues relating to his case and helping connect him with other resources. She said when GLAD began planning its DOMA challenge it consulted with Immigration Equality and other immigration experts and concluded that it would not be helpful to include immigration issues in the challenge. She said Congress has almost unlimited discretion to set immigration policy, and immigration law is a complicated area of law that is outside GLAD's realm of expertise."[Bi-national couples who have been separated] are definitely the most heartrending examples of the damage caused by DOMA, but we didn't feel we have tremendous prospects for success. ... The concern was more about our ability to be successful, and we designed this DOMA case to, we hope, poke enough holes in DOMA that it would make it untenable and help everybody, including people whose issues involve immigration," said Cunningham.

Victoria Neilson, Immigration Equality's legal director, said her organization declined to get involved in Coco's case because the organization is supporting UAFA, and it believes pursuing a legislative strategy is the most effective way to help bi-national couples." We certainly applaud Sen. Kerry's efforts to try to bring Junior back through the asylum application, but at this point our strategy is to focus on the Uniting American Families Act," said Neilson.

An ACLU spokesman did not return a call to comment for this story.

Advocates may be pursuing a legislative strategy, but they do not expect it to bear fruit in the near future. President Obama has said recently that he plans to push for comprehensive immigration reform legislation at some point later this year, and Cristina Finch, HRC senior counsel, said that HRC plans to make sure that the issues facing bi-national same-sex couples are part of the debate on immigration reform. But she said immigration issues are already so politically charged that it is unlikely UAFA would be part of any comprehensive immigration bill.

"Certainly that's something that we're looking towards. If there's going to be comprehensive immigration reform legislation we'd love to see the Uniting American Families Act to be part of that. Unfortunately immigration is a very touchy subject, and when you add LGBT immigration on top of that it's a very heavy lift," said Finch.

Asked about Obama's stance on UAFA and the likelihood of its inclusion in comprehensive immigration legislation, White House spokesman Shin Inouye said in a statement that, "The president thinks Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country. We will work closely with Congress to craft comprehensive immigration reform legislation."

Kerry told Bay Windows that it was hard to assess the short-term prospects for UAFA.

"I can't tell you today how that legislative fight will shape up especially in 2009 when you've got so many legislative fires burning. But I'm very optimistic that this common sense legislation will get done at the right moment. It's frustrating as hell, but it takes time and you have to find the moment legislatively to get it done. Persistence counts," Kerry said in a statement. "Look at an issue like the draconian HIV travel ban we finally ended last year - we couldn't pass it as a stand-alone bill, but [Oregon Senator] Gordon Smith and I worked it in the Foreign Relations Committee, got it included in PEPFAR, and President Bush signed it into law. You have to work it from multiple angles, and that's what I'm determined to do."