In re Jose Mauricio LOVO-Lara, Beneficiary of a Visa Petition

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In re Jose Mauricio LOVO-Lara, Beneficiary of a Visa Petition

Legal decision

By: U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals

Date: May 18, 2005

Source: "In re Jose Mauricio LOVO-Lara, Beneficiary of a Visa Petition filed by Gia Teresa LOVO-Ciccone, Petitioner." Board of Immigration Appeals, U.S. Department of Justice, May 18, 2005.

About the Author: The Executive Office for Immigration Review (EOIR) was created on January 9, 1983. It is not charged with enforcing immigration laws. The agency is simply responsible for interpreting and administering federal immigration laws. The Board of Immigration Appeals (BIA), an appellate body within EOIR, is charged with hearing visa petition appeals from the Department of Homeland Security's Citizenship and Immigration Services division. BIA decisions are effective as precedent that must be recognized by federal immigration-related agencies.

INTRODUCTION

The definition of marriage has been the subject of enormous political debate. While gays and lesbians seek formal recognition of their partnerships, others have argued that acknowledging such relationships threatens the institution of marriage. Opponents of gay marriage succeeded in passing the Defense of Marriage Act (DOMA) in 1996, which defined marriage as a union between a man and a woman.

In 2005, the marriage debate became more complicated when a man and a woman who had formerly been a biological man attempted to obtain the protection of marriage on the grounds that they were an opposite sex couple. The Lovo case involved the validity of an immigrant visa petition filed by an American citizen, Gia Teresa Lovo-Ciccone, who was born male in North Carolina in 1973. Lovo-Ciccone underwent a sex reassignment operation to become female in 2001 and received a new birth certificate from North Carolina that designated her as female. She married a man from El Salvador, Jose Mauricio Lovo-Lara on September 1, 2002 and filed a visa petition on his behalf in November 2002. The federal government opposed the petition on the grounds that DOMA precluded the recognition of this marriage. Jose Lovo-Lara remained in the U.S. legally under a temporary protected immigration status while the case proceeded.

On May 18, a BIA panel consisting of judges Edward R. Grant, Frederick D. Hess, and Roger Pauley decided that recognizing transgendered marriage for immigration purposes was not forbidden by DOMA. A review of DOMA indicated that the legislation was intended by Congress to forbid federal recognition of marriages between homosexuals with the terms "same sex" and "homosexual" used throughout the congressional debate. Since North Carolina allows a person to change their sex designation after an operation, the petitioner is legally a woman and the marriage is between partners of opposite sexes.

PRIMARY SOURCE

IN RE JOSE MAURICIO LOVO-LARA, BENEFICIARY OF A VISA PETITION FILED BY GIA TERESA LOVO-CICCONE, PETITIONER

File A95 076 067-Nebraska Service Center

Decided May 18, 2005

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), does not preclude, for purposes of Federal law, recognition of a marriage involving a postoperative transsexual, where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

(2) A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §1151(b)(2)(A)(i) (2000), where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.

FOR PETITIONER: Sharon M. McGowan, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Allen Kenny, Service Center Counsel

BEFORE: Board Panel: GRANT, HESS and PAULEY, Board Members.

GRANT, Board Member:

In a decision dated August 3, 2004, the Nebraska Service Center ("NSC") director denied the visa petition filed by the petitioner to accord the beneficiary immediate relative status as her husband pursuant to section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2000). The petitioner has appealed from that decision. The appeal will be sustained.

I. FACTUAL AND PROCEDURAL HISTORY

The petitioner, a United States citizen, married the beneficiary, a native and citizen of El Salvador, in North Carolina on September 1, 2002. On November 20, 2002, the petitioner filed the instant visa petition on behalf of the beneficiary based on their marriage. The record reflects that when the petitioner was born in North Carolina on April 16, 1973, she was of the male sex. How-ever, an affidavit from a physician reflects that on September 14, 2001, the petitioner had surgery that changed her sex designation completely from male to female.

In support of the visa petition, the petitioner submitted, among other documents, her North Carolina birth certificate, which lists her current name and indicates that her sex is female; the affidavit from the physician verifying the surgery that changed the petitioner's sex designation; a North Carolina court order changing the petitioner's name to her current name; the North Carolina Register of Deeds marriage record reflecting the marriage of the petitioner and the beneficiary; and a North Carolina driver's license listing the petitioner's current name and indicating that her sex is female.

On August 3, 2004, the NSC director issued his decision denying the instant visa petition. In support of his denial, the NSC director stated that defining marriage under the immigration laws is a question of Federal law, which Congress clarified in 1996 by enacting the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) ("DOMA"). Pursuant to the DOMA, in order to qualify as a marriage for purposes of Federal law, one partner to the marriage must be a man and the other partner must be a woman. In his decision the NSC director stated as follows:

While some states and countries have enacted laws that permit a person who has undergone sex change surgery to legally change the person's sex from one to the other, Congress has not addressed the issue. Con-sequently, without legislation from Congress officially recognizing a marriage where one of the parties has undergone sex change surgery … this Service has no legal basis on which to recognize a change of sex so that a marriage between two persons born of the same sex can be recognized.

The NSC director concluded that "since the petitioner and beneficiary were born of the same sex, their marriage is not considered valid for immigration purposes and the beneficiary is not eligible to be classified as the spouse of the petitioner under section 201(b) of the Act."

The petitioner filed a timely Notice of Appeal (Form EOIR-29) and subsequently filed a brief in support of her appeal. The Department of Homeland Security ("DHS") Service Center Counsel also filed a brief in support of the NSC director's decision.

II. ISSUE

The issue presented by this case is whether a marriage between a postoperative male-to-female transsexual and a male can be the basis for benefits under section 201(b)(2)(A)(i) of the Act, where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage valid.

III. ANALYSIS

In order to determine whether a marriage is valid for immigration purposes, the relevant analysis involves determining first whether the marriage is valid under State law and then whether the marriage qualifies under the Act.

We find that the petitioner's marriage to the beneficiary is considered valid under the laws of the State of North Carolina. We also note that neither the NSC director nor the DHS counsel has asserted anything to the contrary on this point.

The dispositive issue in this case, therefore, is whether the marriage of the petitioner and the beneficiary qualifies as a valid marriage under the Act. Section 201(b)(2)(A)(i) of the Act provides for immediate relative classification for the "children, spouses, and parents of a citizen of the United States." The Act does not define the word "spouse" in terms of the sex of the parties. However, the DOMA did provide a Federal definition of the terms "marriage" and "spouse" as follows:

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.

Neither the DOMA nor any other Federal law addresses the issue of how to define the sex of a postoperative transsexual or such designation's effect on a subsequent marriage of that individual. The failure of Federal law to address this issue formed the main basis for the NSC director's conclusion that this marriage cannot be found valid for immigration purposes. As stated above, the NSC director found that because Congress had not addressed the issue whether sex reassignment surgery serves to change an individual's sex, there was no legal basis on which to recognize a change of sex. Accordingly, he concluded that he must consider the marriage between the petitioner and the beneficiary to be a marriage between two persons of the same sex, which is expressly prohibited by the DOMA.

In determining the effect of the DOMA on this case, we look to the rules of statutory construction. The starting point in statutory construction is the language of the statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). If the language of the statute is clear and unambiguous, judicial inquiry is complete, as we clearly "must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). We find that the language of section 3(a) of the DOMA, which provides that "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," is clear on its face. There is no question that a valid marriage can only be one between a man and a woman. Marriages between same-sex couples are clearly excluded.

We therefore conclude that the legislative history of the DOMA indicates that in enacting that statute, Congress only intended to restrict marriages between persons of the same sex. There is no indication that the DOMA was meant to apply to a marriage involving a postoperative transsexual where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

There is also nothing in the legislative history to indicate that, other than in the limited area of same-sex marriages, Congress sought to overrule our long-standing case law holding that there is no Federal definition of marriage and that the validity of a particular marriage is determined by the law of the State where the marriage was celebrated. See Matter of Hosseinian, 19 I& N Dec. 453, 455 (BIA 1987). While we recognize, of course, that the ultimate issue of the validity of a marriage for immigration purposes is one of Federal law, that law has, from the inception of our nation, recognized that the regulation of marriage is almost exclusively a State matter. See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971); Sherrer v. Sherrer, 334 U.S. 343 (1948)

The DHS counsel appears to argue that in determining whether a particular marriage is valid under the DOMA, we must look to the common meanings of the terms "man" and "woman," as they are used in the DOMA. Counsel asserts that these terms can be conclusively defined by an individual's chromosomal pattern, i.e., XX for female and XY for male, because such chromosomal patterns are immutable. However, this claim is subject to much debate within the medical community. According to medical experts, there are actually eight criteria that are typically used to determine an individual's sex. They are as follows:

Genetic or chromosomal sex—XX or XY;
Gonadal sex—testes or ovaries;
Internal morphologic sex—seminal vesicles/prostate or vagina/uterus/fallopian tubes;
External morphologic sex—penis/scrotum or clitoris/labia;
Hormonal sex—androgens or estrogens;
Phenotypic sex (secondary sexual features)—facial and chest hair or breasts;
Assigned sex and gender of rearing; and
Sexual identity.

See Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 278 (1999).

While most individuals are born with 46 XX or XY chromosomes and all of the other factors listed above are congruent with their chromosomal pattern, there are certain individuals who have what is termed an "intersexual condition," where some of the above factors may be incongruent, or where an ambiguity within a factor may exist. Id. at 281. For example, there are individuals with a chromosomal ambiguity who do not have the typical 46 XX or XY chromosomal pattern but instead have the chromosomal patterns of XXX, XXY, XXXY, XYY, XYYY, XYYYY, or XO. Id. Therefore, because a chromosomal pattern is not always the most accurate determination of an individual's gender, the DHS counsel's reliance on chromosomal patterns as the ultimate determinative factor is questionable.

Moreover, contrary to the suggestion of the DHS counsel, reliance on the sex designation provided on an individual's original birth certificate is not an accurate way to determine a person's gender. Typically, such a determination is made by the birth attendant based on the appearance of the external genitalia. However, intersexed individuals may have the normal-appearing external genitalia of one sex, but have the chromosomal sex of the opposite gender. Greenberg, supra, at 283-92. Moreover, many incongruities between the above-noted factors for determining a person's sex, and even some ambiguities within a factor, are not discovered until the affected individuals reach the age of puberty and their bodies develop differently from what would be expected from their assigned gender. Id. at 281-92.

We are not persuaded by the assertions of the DHS counsel that we should rely on a person's chromosomal pattern or the original birth record's gender designation in determining whether a marriage is between persons of the opposite sex. Consequently, for immigration purposes, we find it appropriate to determine an individual's gender based on the designation appearing on the current birth certificate issued to that person by the State in which he or she was born.

IV. CONCLUSION

We have long held that the validity of a marriage is determined by the law of the State where the marriage was celebrated. The State of North Carolina considers the petitioner to be a female under the law and deems her marriage to the beneficiary to be a valid opposite-sex marriage. We find that the DOMA does not preclude our recognition of this marriage for purposes of Federal law. As the NSC director did not raise any other issues regarding the validity of the marriage, we conclude that the marriage between the petitioner and the beneficiary may be the basis for benefits under section 201(b)(2)(A)(i) of the Act. Accordingly, the petitioner's appeal will be sustained, and the visa petition will be approved.

ORDER:

The petitioner's appeal is sustained, and the visa petition is approved.

SIGNIFICANCE

The Lovo decision reaffirmed that the federal government will defer to the states to define marriage. The BIA concluded that if a marriage is valid in the state in which it is entered into, it should be recognized for immigration purposes. Such a decision overturned a memorandum issued on April 14, 2004 by the Citizenship and Immigration Services (CIS). The memorandum stated that all marriage-based immigration petitions would be denied where one spouse was a transsexual.

For most of U.S. history, immigration law forbade the granting of legal status to immigrants who exhibited "sexual deviation." In 1990, the phrase was eliminated from immigration laws as a basis for keeping gays and lesbians from entering the country. In 1994, Attorney General Janet Reno directed the Immigration and Naturalization Service to consider sexual orientation as a legitimate basis for political asylum. Gays and lesbians could gain asylum if they could prove that they had suffered persecution in their native countries or could document a well-founded fear of future persecution.

The first person in the U.S. to benefit from the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment was a transgendered man from Nicaragua. Oscar Serrano, also known as Amanda DuValle, was tortured and raped in 1996 by Nicaraguan immigration officers because she was a transsexual. She had just been deported by the U.S. for immigrating illegally. DuValle returned illegally to the U.S. and escaped deportation a second time in 1999 by invoking the torture convention.

As the Lovo matter went through the legal system, a transgender man who fled Jose Lovo-Lara's home of El Salvador was trying to remain in the U.S. Luis Reyes-Reyes did not have a sex change operation but lived as a woman. For being transgendered, he was tortured by the El Salvador police. He was the victim of officially tolerated gay-bashing. He immigrated illegally to Los Angeles to avoid further abuse. In 2002, immigration judges ordered him to be deported. In 2004, the Ninth U.S. Circuit Court of Appeals overturned the decision because U.S. law bars deportation of illegal immigrants to countries in which they would face torture.

The CIS memorandum that was overturned in the Lovo case had the potential to cause significant harm because of the dangers of being gay in other nations. While Lovo did not address the risk of torture, the subject was raised by gay activists who celebrated the decision.