A Rude Shock at Christmas

Jair Izquierdo, a 33-year-old, Peruvian-born gay man, first came to the United States a decade ago. Having traveled to America on a tourist visa with his boyfriend, who was also from Peru, Izquierdo stayed on, first working in retail and, more recently, as a hair and make-up stylist.

In May of 2005, he began dating Richard Dennis, an information systems specialist raised in Connecticut, who attended college in New Orleans and works for a European bank in Manhattan. In January 2006, Dennis, who is 47, and Izquierdo moved into in an apartment together in Fort Lee, New Jersey. Two years later, the couple entered into a New Jersey civil union, and in 2009 they moved to a new home in Jersey City.

Building a life together for more than five years — even with the marriage-like legal protections of their civil union — did nothing to cushion the trauma the two men have endured since October 20. From that date until December 17, Izquierdo was incarcerated in an Immigration and Customs Enforcement (ICE) detention facility in Elizabeth — and barring a reversal of legal fortunes, those will turn out to be his last days in America for at least a decade.

NJ civil union provides no protection for Peruvian man abruptly deported

On December 17, with two separate applications pending for a reconsideration of his deportation order — one personally endorsed two days earlier by US Senator Robert Menendez — Izquierdo was put on a plane at Newark Airport and returned to Peru.

That plane took off at 2:20 p.m. Four hours earlier, Izquierdo had no hint he would not be spending another night in the dorm-like setting of the Elizabeth facility as he spoke to his husband, who had just come from a meeting with members of Menendez’s staff. The couple talked hopefully about the energy the senator’s office was putting into their case.

But, at 11:15 a.m., less than an hour after Izquierdo and Dennis hung up, the Peruvian man was summoned by officials at the detention facility, told to gather the few possessions he had, and put on a bus for the airport.

Paul O’Dwyer, an immigration rights attorney who represents Izquierdo and had run up against brick walls and official silence repeatedly during his client’s two months of detention, scrambled to get somebody at Elizabeth to reverse the decision. Meanwhile, Menendez got on the phone with Homeland Security Secretary Janet Napolitano, pleading Izquierdo’s case on the “deferred action” grounds he had earlier written to ICE about and asking that he be taken off the plane.

But the wheels were literally in motion, and the efforts came too late. By midnight, Izquierdo arrived at his aunt’s home in Peru, the first time he was back in his country of birth since 2001.

Sadly, the circumstances Izquierdo and Dennis find themselves in are unremarkable among binational same-sex couples who live in the US. Immigration law takes no notice of any relationship, informal or legally recognized, between two men or two women. Even had the couple married in Connecticut or Massachusetts, the Defense of Marriage Act would have denied them any protections under federal law. Unlike every single American man or woman with a foreign-born spouse, Richard Dennis has no legal right to the companionship of the person he loves in his home country.

According to statistics from the UCLA School of Law’s Williams Institute, which studies legal and public policy issues related to sexual orientation, there are approximately 36,000 couples in the US in which the immigrant partner lacks permanent residency. Steve Ralls, a spokesman for Immigration Equality — an advocacy group working for legislation giving foreign same-sex partners equal footing with different-sex spouses and to protect those currently caught in the snare of an unjust system — stated that the percentage of those couples where one partner faces immediate removal is difficult to estimate, but the number is climbing as temporary visas expire. Nearly half of the 36,000 couples have small children, many of whom are American citizens but are unable to sponsor their parent for permanent residency until they are 21.

Many couples and families facing the same problems as Dennis and Izquierdo lack the resources the couple have been able to marshal — the two men have incurred tens of thousands of dollars in legal and other expenses to date.

The only offense Izquierdo committed under US law was that he overstayed a tourist visa. In 2005, he applied for asylum on the basis of persecution he would face if returned to his home country. It was the stability and strength of his relationship with Dennis that prompted him to proceed with the asylum claim.

“He always wanted to regularize his status,” Dennis recalled. “It weighed on his mind.”

Izquierdo’s appeals were heard by an Immigration Judge, who is an employee of the Justice Department, by the Board of Immigration Appeals, and by a federal appeals court. At each venue, he was unsuccessful — his application was filed too late; the judges focused on what Dennis described as minor inconsistencies in his account of a cousin blackmailing him, with the complicity of the police, over his sexual orientation; and the evidence O’Dwyer presented about the conditions facing gay people in Peru did not meet a high enough standard.

Memories of those legal proceedings haunt Dennis; what he witnessed there made him feel “embarrassed as an American — not just the way Jair was treated, but the way everyone is.”

“They try to trip you up,” he recalled of the questioning Izquierdo faced about his testimony of harassment in Peru. “They caught him in a small contradiction, and then the prosecutor blew a gasket and starting yelling, ‘He’s a liar.’”

By November 2009, Izquierdo’s options had run their course; he was given a final order of removal.

Official policy at ICE is to prioritize removal orders for those immigrants with criminal records, a category that does not include Izquierdo. For the next 11 months, nothing happened, and he and Dennis continued their lives in Jersey City as best they could, even with the ever-present risk of being separated hanging over their heads.

“It was always there,” Dennis said. “It was always the other person in the room. People would ask me, ‘Are you happy?’ And I would say, ‘Yes.’ But, there was always a shadow. It was something I didn’t verbalize, but I was happy with an asterisk.”

On October 20, Izquierdo received a call from a purported client asking to schedule a make-up consultation. When he arrived at work for the appointment, he was met by ICE officials, who took him into custody.

O’Dwyer started down several legal avenues on Izquierdo’s behalf. He filed a motion to reopen his client’s case before the Board of Immigration Appeals, based on what he said was “a significant amount of evidence that conditions for gay people in Peru had gotten worse” since Izquierdo’s case had originally been heard. While that motion was pending, he simultaneously asked the Board and ICE for stays of deportation; both applications were denied. Izquierdo’s motion to reopen his case had not been acted on at the time he was sent back to Peru.

The attorney also pursued what is known as “deferred action,” a discretionary administrative status under which ICE essentially opts not to enforce a removal order. O’Dwyer argued that any fair “weighing of the equities” involved in Izquierdo’s case should have led government officials to pursue this course. The immigrant had lived in the US for roughly ten years, had obeyed the law, found work, and established a life partnership with another man. He posed no threat to the civil order or the nation’s security.

Those equities, however, were never fairly weighed, O’Dwyer argued.

“They have the discretion,” he charged. “They made the discretionary decision not to pay attention to a gay relationship. Gay relationships are not viewed as real relationships.”

The attorney said that whatever the deportation priorities the Department of Homeland Security has established, local detention facilities and ICE offices feel an incentive to process as many removals as quickly as they can.

The paperwork supporting the deferred action appeal arrived at ICE on December 13, and was followed up two days later by Menendez’s letter of support. Meanwhile, officials at the detention facility were proceeding with their plans to carry out the final order of removal issued last November, with both the deferred action application and the motion for a rehearing before the Board of Immigration Appeals in the works.

In what felt like a clear afterthought, as Izquierdo’s bus was traveling the short route from Elizabeth to Newark, O’Dwyer received a call from a top official at the detention facility telling him that after “thorough consideration” he had decided to deny the deferred action motion. The official had received the paperwork the day before.

“Well, he’s on the way to the airport,” O’Dwyer told the ICE official, who acknowledged that, and added, “I understand that his friend is very upset.” Dwyer shot back, “That’s not his friend. That’s his husband.”

Asked to comment on Izquierdo’s case, Harold Ort, a spokesman for ICE stated simply, “Jair Izquierdo was removed from the United States on Friday.”

With the assistance of Immigration Equality, O’Dwyer will continue his efforts to reopen Izquierdo’s asylum claim before the Board of Immigration Appeals and also pursue another discretionary administrative remedy know as “humanitarian parole,” which would allow the Peruvian to return to New Jersey, again with the removal order essentially kept in abeyance. Immigration Equality’s Ralls emphasized that such parole is limited to one year, but offers the couple the best short-term solution. He cited the precedent of a Massachusetts couple where the foreign-born partner was granted the humanitarian relief based on the dangers he faced in his home country.

Dennis said Menendez’s office has pledged to assist to the extent it can in making the case for that alternative.

Three days after his husband’s deportation, Dennis sounded subdued but determined, even while describing the events of December 17 as a “death punch.” The couple have spoken several times by telephone, and Dennis described Izquierdo as “feeling abandoned and scared and alone,” but also welcomed by his aunt, mother, and cousin.

On December 24, Dennis will fly to Peru for a six-day Christmas visit and bring Izquierdo some personal possessions he went without for two months in Elizabeth. Dennis hopes to return to Peru for a longer visit in February, when the couple celebrate the three-year anniversary of their civil union.

When Dennis sees Izquierdo in Peru on Christmas Eve, it will be the first time they have spent time alone together since October 20. When the couple first spoke after Izquierdo’s arrival in Peru, Dennis told him to remember that they had done everything they could have to date and that “at least you’re out of detention.”

Dennis said his husband didn’t have too many complaints about conditions in Elizabeth, except to say that it was often very cold there at night. The men detained there sleep in one of several gymnasium-like bunk facilities. In the first one where Izquierdo was assigned, he experienced harassment from several of the other inmates because of his sexual orientation, one of them grabbing his rear end. Izquierdo responded by publicly coming out to his fellow dorm detainees, telling them he was proud to be gay. Most of the other men supported him against the harassers.

A week before Izquierdo was deported, Dennis conceded that had he known how trying the asylum application route would prove for his husband, he might have earlier suggested they leave the United States together. Izquierdo, he said, always insisted Dennis should not have to give up his home country and his career.

“It’s not even a question in my mind but that I would do it,” Dennis said.

In fact, he is fortunate to have more options than many Americans in his situation. The bank where he has worked for 15 years has offices around the world, including South America — though he was quick to point out he can’t speak Spanish. Dennis’ mother is a citizen of Sweden, where she currently lives, and because of that, he has dual citizenship. If he were to move to Sweden, Izquierdo could legally immigrate there, and living in Sweden would afford them opportunities for moving to another European Union country. If they stay in Sweden, Dennis would have to find a new job; that country is not one of the 25 where his employer has offices.

In the 72 hours after his husband was abruptly thrown out of the United States, Dennis, of course, hadn’t been able to focus specifically on long-term solutions to the dilemma he and Izquierdo face. For now, his concern is to assure his husband of his love, support, and commitment, and to find time for the two of them to be together.

Dennis said he has the support of his family and friends, as well as O’Dwyer and Immigration Equality, but explained he finds himself in an uncomfortable position relying on the efforts of others.

“I don’t want to force the issue on people,” he said. “That’s my personality. I’ve always been a bit of a loner. I’m not that good at asking people for help.”

Even as advocates, elected officials, and other binational couples continue their push to change the laws that have punished Dennis and Izquierdo in such demeaning fashion, the two men can’t help but often feel alienated from the world around them, that their struggle is a lonely one.

“I almost feel as though it’s me and Jair against the world,” Richard Dennis said.