News :: GLBT
Love in exile: One year later, Brazilian spouse still blocked from returning by Ethan Jacobs
associate editorWednesday Aug 13, 2008 On a cool summer evening on a quiet residential street in Haverhill about 35 friends, neighbors and family members gathered for a candlelight vigil to mark the one-year anniversary of the forced separation of Tim Coco and Genesio Oliveira, Jr. The couple was legally married in 2005, but Oliveira, a Brazilian citizen, was forced to return to his native country last August after his request for asylum in the United States was denied.
Coco held the vigil at the couple’s Haverhill home, now occupied by Coco and the couple’s dog, Q-Tip, to raise awareness about the unjust treatment he and Oliveira have received as a result of the federal Defense of Marriage Act (DOMA). While immigration law allows spouses of American citizens to obtain legal permanent residency, under DOMA Coco and Oliveira are not considered spouses. The couple is considering filing a legal challenge to overturn DOMA in federal court, but Coco told the crowd at the vigil that he and Oliveira have become activists by necessity, not by choice. He said if the federal government was willing to allow Oliveira to return they would happily resume their normal lives and abandon any efforts to take legal action.
"Junior is a victim of a government-sponsored hate crime. The United States government knows we’re a family, they know we’re legally married. ... We’re willing to go away quietly, just let us get back together," said Coco, who owns a Haverhill-based advertising agency.
The couple met in 2002 while Oliveira, a medical student, was in the U.S. on vacation. They stayed in touch via e-mail and telephone, and that fall Oliveira moved to the U.S. to be with Coco. Oliveira applied for asylum based on anti-gay persecution, although Coco declined to disclose to Bay Windows the nature of the alleged persecution Oliveira faced back home. Oliveira’s plea for asylum was rejected. Coco said the couple believes that rejection was a result of judicial malpractice; he said the judge who heard Oliveira’s case was immigration Judge Francis Cramer, who gained notoriety in June 2007 when the Washington Post reported that he was appointed because of his ties to the Republican Party rather than his professional background. Cramer’s appointment was one of many that came to light during last year’s Justice Department partisan hiring scandal, and the Post reported that the Government Accountability Office had criticized Cramer’s appointment because of his lack of experience in immigration law.
The couple legally married during the asylum process. Last August, after Oliveira’s visa expired, he was forced to return to Brazil. The couple filed an I-130 request, which a U.S. citizen would file to allow his or her spouse to obtain residency, but they expect that petition will be denied. Once they receive the formal denial Coco said the couple might take legal action.
Coco’s neighbors and friends made a strong show of support at the vigil. Friends chatted and snacked on hors d’oeuvres under a tent on the front lawn early in the evening; as darkness fell they lit candles and assembled on the couple’s side lawn, where Coco had set up speakers, a television and a microphone. As Q-Tip darted around him, Coco bent down to light candles on either side of the speakers. The couple’s former minister, the Rev. Janet Bowering, formerly of the Unitarian Universalist Church of Haverhill, began the vigil with an invocation.
"When a gay partner or spouse cannot be with their loved one we are robbing both of a basic human need, the need to love and to be loved," said Bowering.
Coco explained the couple’s situation to the attendees and said that under the current system their marriage makes it nearly impossible for Oliveira to return to the country. The federal government does not recognize their marriage for immigration purposes, but they have used the couple’s marriage as a justification to deny Oliveira a tourist visa, claiming it indicates that Oliveira intends to remain in the country for longer than a fixed duration.
Oliveira himself addressed the group gathered on the lawn, speaking via a pre-recorded video played on the television screen. The video began with animated footage of a polar bear and a monkey frolicking outdoors before being separated by a chasm opening up in the earth, with the songs "Somewhere Out There" and "There’s a Place For Us" as the soundtrack. Then the video cut to Oliveira himself, who spoke about his hopes for being reunited with Coco.
"I wish I could say I will be home soon, but it looks like we have a long fight ahead of us," said Oliveira.
Given the state of federal immigration laws and DOMA, there’s no immediate fix for the couple’s problem. While the couple awaits the formal rejection of their I-130 petition Coco said they are trying to determine how to launch their legal challenge. The standard route would be appealing to the Board of Immigration Appeals, but Coco said they are considering bypassing the board and filing a direct constitutional challenge of DOMA in the federal courts. He said the LGBT legal advocacy groups such as Gay and Lesbian Advocates and Defenders (GLAD) and Lambda Legal have discouraged him from pursuing a federal court challenge, warning that it is unlikely to succeed, but Coco said other attorneys have told him that the federal courts have been increasingly willing to step in and overrule other branches of government on immigration issues.
"I’m not sure we should be ruled out any time soon," said Coco.
Gary Buseck, legal director of GLAD, said that challenging DOMA based on discrimination around immigration is a difficult prospect because the courts traditionally defer to Congress on immigration issues.
"It’s kind of hard to figure out where the court would go. ... I think all the legal scholars would agree this is a complicated area because of the extra deference the court wants to give to Congress on immigration," said Buseck. He said the most promising solution might be passage by Congress of the Uniting American Families Act, which would allow Americans to sponsor same-sex partners for immigration purposes.
Buseck said GLAD has met with Coco and explained their view on his prospects of winning a federal challenge, as well as other options the couple may have to resolve the situation administratively without going to court. He is unsure what role GLAD would play if Coco decides to proceed with that challenge, but he said GLAD would keep in close contact with him throughout the process.
"We’ve been trying to engage him in this conversation knowing he’s dealing with one of the worst situations you can have in a family," said Buseck.
Coco said the couple is pursuing other avenues to get Oliveira back into the country beyond the legal challenge. They may refile Oliveira’s asylum case, arguing that Cramer’s ruling was faulty. Coco also urged attendees at the vigil to lobby their members of Congress to support both the Uniting American Families Act and an effort to repeal DOMA.
The couple has also reached out to members of the Massachusetts congressional delegation. Coco said they have spoken with staff for Congresswoman Niki Tsongas (who sent an aide to the vigil) and Sens. John Kerry and Ted Kennedy. Kerry’s office got directly involved, sending a letter to the Department of Homeland Security urging them to expedite the process for their I-130 petition, but Coco said Homeland Security denied Kerry’s request.
"Senator Kerry met Tim Coco twice this past spring, once in Haverhill and again at 5th District Day in Washington. The senator was personally moved by Tim’s plight and his office has explored several ways to be helpful since then. Unfortunately, due to bureaucratic entanglements, very little progress has been made. However, our office continues to explore ways as to how the senator can be helpful to both Tim and Genesio," said Kerry spokesman Andrew O’Brien in a statement to Bay Windows.
Coco said he is also urging Kerry and other members of Congress to appeal directly to U.S. Attorney General Michael Mukasey, who he said has the authority to unilaterally grant Oliveira residency.
In the meantime Coco said he and Oliveira talk every night via online video chats, and he has traveled to Brazil three times to visit. He said if either immigration authorities or Mukasey allow Oliveira to return home through an administrative ruling the couple would happily abandon their efforts to be reunited through the courts.
"I would put aside that challenge if they would just let Junior come home," said Coco.
Ethan Jacobs can be reached at ejacobs@baywindows.com
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