March 25, 2012

DOMA: San Francisco Bay Area Married Couple Granted 6 Month Reprieve With No Guarantees From Federal Court

 Alphonso Garcia & Brian Willingham Won The Battle, As The United States Citizenship And Immigration Service Continues To Wage War Against Them, And Many Other American Families & Bi-national LGBT Couples

Last summer, a happily married couple were in their car, when a bay area police officer pulled them over. They cooperated with the policeman’s request, and as part of the routine, the officer ran a background check to see if there were any outstanding warrants for the two men in the car. What transpired next, has threatened their relationship, their freedom, and impacted their lives in a way that most people would find unimaginable.

 Alphonso Garcia didn’t commit a crime on that summer day. His partner and husband, Brian Willingham, didn’t commit a crime either. That didn’t matter as far as the police officer was concerned. The information that the policeman received from his dispatcher was that Alphonso Garcia was a Mexican citizen, living in the United States as an illegal alien. The  U.S. Citizenship and Immigration Services (USCIS) requires that all law enforcement personnel take into custody, any individual alleged to be an illegal alien.

There were no tickets or citations issued to the Bay Area married couple that day, though you’d never know it, as Alphonso Garcia was treated like a hardened criminal, and taken away to the County Jail in chains. When Alphonso was in custody, he was moved around to different facilities, until he was transferred to a Federal Immigration Detention Center in San Francisco. Bureaucratic snafus prevented Brian Willingham from visiting his husband for nearly a week, and when he was finally allowed a ten minute visit, Alphonso was brought to a supervised visiting area in handcuffs, and all the couple could do was cry.



1996: The Defense Of Marriage Act or DOMA


In June of 1996 President Clinton told The Advocate that "I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered."

On a hot August night in 1996, after being renominated as the Democratic candidate for President, William Jefferson Clinton gave his acceptance speech, and told the assembled delegates:

''If we want to build that bridge to the 21st century we have to be willing to say loud and clear, if you believe in the values of the Constitution, the Bill of Rights, the Declaration of Independence, if you're willing to work hard and play by the rules, you are part of our family and we're proud to be with you.

We still have too many Americans who give in to their fears of those who are different from them. So look around here, look around here — old or young, healthy as a horse, or a person with a disability that hasn't kept you down, man or woman, Native American, native born, immigrant, straight or gay, whatever; the test ought to be I believe in the Constitution, the Bill of Rights and the Declaration of Independence.''

Some members of the LGBT community, myself included, heard that speech and thought we had turned a corner, and we cheered.

A month later, The Defense of Marriage Act (DOMA) was passed into law by the House and Senate. Clinton was facing a spirited re-election campaign, with Kansas Senator Bob Dole, and third-party candidate Ross Perot, as his opponents. Appealing to conservative voters, Clinton acted like Willard Mitt Romney and flip-flopped after that lovely speech, when he quietly signed DOMA into law at 12:50am on September 21, 1996.

Richard Socarides, an official in the Clinton Administration recalls, ''Presidents make tough calls all the time, and I think that there were people advising the president – the president had a group of political advisers who, at the time, actually believed that if the president had vetoed the bill, that his re-election would be jeopardized.''

Since that time, multiple federal courts have ruled that DOMA is discriminatory and unconstitutional, and it appears that the Supreme Court will be the final arbiters in deciding the constitutionality of the law. The million dollar question is when?


You Can Dream, Unless You’re An Illegal Alien. No DREAM for you!


The Development, Relief and Education for Alien Minors (DREAM Act) legislation was first proposed in Congress in 2001. The DREAM Act would provide a legal path to citizenship, for any individual who entered the United States illegally, as a minor child. Different variations of the legislation have required that the illegal aliens have a good moral character (no criminal record), graduate from high school, and lived continuously in the United States for five years or more. If a non-citizen served in the US military, or attended college and earned a degree, they would qualify for a six-year visa to live and work in the United States, while pursuing their citizenship, under most versions of the act.

The bill passed in the House in 2010, but Republican Senators threatened a filibuster if the bill was brought to the floor for a vote. Nevada Senator Harry Reid reintroduced the bill in the Senate in 2011, and Republican Senators rejected the measure again. They wanted more immigration  enforcement provisions in the bill, including that “great wall of china” built along our southern border with Mexico.

Deportation proceedings are not a criminal proceeding. Contrary to the GOP misinformation campaign, waged by their extremist right-wing candidates over the years, illegal aliens are not criminals. The legal proceeding is a civil action, heard in the Federal Immigration courts. Why are the respondents in these civil actions being incarcerated, at great expense to the taxpayers? Why don’t they enjoy the same civil liberties that are guaranteed under our Constitution?

To generalize about illegal aliens, and brand them all a criminal, when they haven't been convicted of any crime, is inflammatory and a bold faced lie at best. I’m sure this will be an issue in the upcoming presidential election, and I’m 100% certain that the GOP nominee will wrongly stand in the “send them home they’re criminals” camp. Any candidate who utters that phrase is a liar, and characterizing it any other way is false.

Due process under the law used the be the hallmark of our judicial system, which is just what the brilliant and bigoted authors of our Constitution intended. The laws articulated in that storied document were supposed to ensure that all people were treated equally in our courts of law. We could proudly point to the Constitution and say we are all created equal (unless you were black, or a woman, or lesbian, gay, bi-sexual or transgender).

There have been amendments to the Constitution to correct discriminatory laws related to race and sex. While the laws are now allegedly color blind, we still see evidence of racist human behavior. While women were given the right to vote, we still have great disparities in wages. Extremist Republican politicians around the country are still trying to find a way to control women’s reproductive organs, even though it’s established law in this country that they have no right to do so.

Unfortunately, for LGBT citizens, DOMA and other legislation allows discrimination against all of us, in hiring, firing, housing, and public accommodation. Our friends and neighbors who would benefit from the DREAM Act, live in fear, because threats of deportation, incarceration, and discrimination are very real. We’re supposed to have checks and balances in our three branches of government, to avert the abusive and punitive measures that our government currently allows.

Are many of the actions our government has taken recently, equal protection under the law? I thought we were all created equal? When the US government can tap your phone, read your email, and seize your website, without due process under the law - we are no longer all created equal. When US citizens can be taken into custody by the government, without a court hearing, and spirited away to a detention center, with little or no contact with the outside world, we are not all created equal.

This is not what our founding fathers intended.

With Liberty And Justice For All* With A Big Red Asterisk


The Pledge of Allegiance is still recited in schools across the country. The pledge ends with “liberty and justice for all.” There should be an asterisk beside that phrase, to indicate that the phrase is not valid for all of the people. Rather than file a lawsuit about the word God in the pledge, we should be filing suit that there's no liberty and justice for all.

Brian Willingham retained a San Francisco immigration attorney to represent the couple, and petition the Federal Immigration Court, in order to contest the deportation proceedings that were initiated against his husband, and make whatever arrangements were necessary to ensure that Alphonso was released from federal custody as soon as possible. Before the motion could be filed with the court, Alphonso was transferred to a detention facility in Arizona.

Brian wrote about his ordeal on the bi-national immigration advocacy website stopthedeportations.com:

I had retained an attorney in San Francisco who filed a request that Alfonso be released on bond, so I left that day thinking he would be home soon. That is when the train jumped even further off the tracks. For some reason, the immigration officials decided the smartest thing to do would be to spend tax payer dollars to put my husband on a prison jet that night and fly him to a facility out in the desert somewhere in Arizona. I had to start all over again with a new attorney in Arizona who finally was able to schedule a bond hearing that ultimately resulted in Alfonso being released two weeks after he was taken to Arizona. I flew to Arizona on the very first flight I could catch the day I heard that the bond had been approved. I had no idea where he would be dropped off. I only knew that he would be alone and that I had to get to him.  Finally, Immigration and Customs Enforcement allowed him to return home, but not before initiating formal “removal” proceedings to deport Alfonso to Mexico, a country he has not lived in for more than 20 years.

Alphonso is one of those individuals who attended school in the United States, because his parents brought him here when he was a minor child. He has lived here for over 20 years, and his parents have resident-alien status, while his sister is a naturalized citizen of the United States. He would benefit from passage of the DREAM Act.

Federal Immigration officials, with the help of a local police department, incarcerated Alphonso for a decision his parents made over 20 years ago. There are thousands of people living among us who are law abiding people, just like Alphonso, who live in fear that they can be sent to a federal detention facility, deprived of due process rights, and deported to a country that they barely know or remember. It has happened, and will continue to happen until Congress decides to do their job, and they pass the DREAM Act.

On Thursday March 22, 2012, Brian and Alphonso appeared in the San Francisco Immigration Court. The judge adjourned the hearing for 6 months, so that Alphonso and his attorneys could work with USCIS, in order to review his green card application. There is a glimmer of hope for Alphonso, but there are no guarantees.   

Alphonso and Brian have been together for eleven years, and in the gay world that’s like dog years, so they’ve been together forever. "We got married in New York last year in August and we're now asking the United States government to treat our marriage with the same respect they treat all other marriages. The government is still processing applications from 1996 even though we're in 2012, so the backlog for sibling petitions is just absolutely incredible," Willingham said.

When the couple’s attorney was asked to comment on the ruling, Lavi Soloway said "That is exactly how any other married couple would be treated in this context, and that is all they were hoping to achieve by going into court, was to be treated equally and with respect."

They want to be treated equally and with respect, just like any other couple.

Equally with respect indeed.

* Liberty and Justice for All unless you’re a minority. Then you’re screwed.

What You Can Do To Help

1. Share a link to this blog post on Twitter, Facebook, Stumble-upon, Google+, reddit and digg. Email the link to a friend or family member, and ask them to share it with someone. Here is the full link you an copy and paste: http://www.jiveinthe415.com/2012/03/doma-san-francisco-bay-area-married.html   And here is a shortened link you can copy and paste: http://tiny.cc/6n4pbw

2. Sign the petition at stopthedeportations.com that is linked here, and share it with people who will sign it.

3. Call or write Alphonso and Brian’s member of Congress -  US Rep. John Garamendi. You can reach his office at (202) 225-1880 or (925) 932-8899.

4. Call or write Senator Dianne Feinstein. You can reach her office at (202) 224-3841
 or (415) 393-0707.

5. Call or write Senator Barbara Boxer. You can reach her office at (202) 224-3553 or (510) 286-8537.

6. Read updates about Alphonso and Brian, and many others experiencing the same discrimination, on the blog for STOP THE DEPORTATIONS: The DOMA Project





straight talk in a queer world.


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