The federal government Friday denied asylum to a gay Brazilian man who married his partner in Massachusetts. The man must now stay in Brazil.

Normally, foreign citizens can become U.S. residents if their spouse is a U.S. citizen. But because of DOMA, immigration law doesn't recognize same sex marriages.

Passing on Chance to Help

The asylum application gave the federal government a chance to bypass immigration law and let the Brazilian man become a U.S. resident regardless. But Eric Holder, the U.S. Attorney General, didn't respond to the application in time, effectively denying it.

The couple even got Massachusetts Senator John Kerry to plea their case to the attorney general, which raised the couple's hopes. The Associated Press reports:

Coco [the U.S. citizen] said he thought there was ''no way'' the Obama Administration would deny Oliveira's asylum request after Kerry made his plea to Holder.

''We are profoundly sad,'' said Coco. ''This is more than any married should have to face.''

The struggle highlights the difficulty for foreigners married to U.S. citizens to become U.S. residents. Because the government won't grant marriage-based visas to same sex couples, foreign spouses generally must rely on an asylum application, the general visa lottery, an employment-based green card or visa, or a student visa.

Any hope?

The Uniting American Families Act, already introduced to the Senate and House, would let “permanent partners” of U.S. citizens beome U.S. residents. While a version of the bill has floated around since 2000, it's possible Democratic majorities in this Congress mean it will pass.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.]

Gideon Alper

Gideon Alper

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