Why Your Gay Sheriff Boyfriend Can’t Make You a U.S. Citizen, Even if You Marry Him

CASA GRANDE, AZ - APRIL 24: U.S. Sen. John McCain (R-AZ) speaks with Pinal County Sheriff Paul Babeu outside VFW Post #1677 during a campaign stop on April 24, 2010 in Casa Grande, Arizona. McCain, who is seeking a fifth term in the Senate, will challenge former congressman and radio personality J.D. Hayworth during the primary. (Photo by Joshua Lott/Getty Images) Photo by Joshua Lott/Getty Images

Sheriff Paul Babeu held a press conference on Saturday to address a few nagging questions. Yes, he was gay. No, he would no longer serve as a co-chairman of Mitt Romney’s Arizona campaign. Yes, he had a relationship with a man named Jose. (The Phoenix New Times, which broke the story, has kept Jose’s last name a secret.) No, he would not resign or end his campaign for Congress. As a matter of fact, coming out was a “relief.” Later that day, he told CNN that he had no problem with gay marriage. “If it’s not harming somebody else,” he said, “then it doesn’t matter.”

That didn’t end the story. According to texts provided by Jose, Babeau broke off the relationship with a series of dire warnings, including “you can never have business after this” and “better get an attorney.” According to Jose, Babeau was threatening to have him or his family deported. Babeau disputes that, and says Jose was a legal U.S. citizen. But what would an illegal immigrant stand to lose if he was cut off from an American partner? Does a gay man have a better shot at citizenship if he marries an American?

No, not at all. The reason is the 1996 Defense of Marriage Act, which pre-empts any and all federal marriage privileges from going to gay couples. It’s pretty clear about this: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

For gays, that law closes off one of the easiest ways to get citizenship. A federally-recognized marriage allows you to apply for adjustment of status (if you originally entered the country legally) or a relative petition (if you did or didn’t get here legally.) For a Mexican national, either option would mean jumping a queue of 1.4 million people.

How to get around this? Pretend to be straight. According to Carl Shusterman, a Los Angeles-based immigration lawyer who used to work for the INS, perhaps 20 percent of visa-through-marriage applications are based on fraud. David Seminara, who researched the subject for the restrictionist Center for Immigration Studies, estimated a fraud rate of between 5 and 30 percent – just plain hard to pin down. The number of fraudsters who are only pretending to be straight? Some fraction of the mysterious digit. We’ve just stumbled upon one way in which DOMA encourages more traditional marriages. Success!