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BIA Upholds Validity Of Marriage Where One Spouse Is Transsexual

by Victoria Neilson

On May 18, 2005, The Board of Immigration Appeals issued a precedential decision, Matter of Lovo, 23 I&N 746 (BIA 2005), overturning the Nebraska Service Center's denial of an I-130 visa petition where one of the spouses is [] transsexual. This decision reverses a recent policy set forth in a U.S. Citizenship and Immigration Services memorandum by William Yates dated April 14, 2004, (See, "The Status Of Transsexuals Under US Immigration Law," by Cyrus Mehta which stated that all marriage-based immigration petitions would be denied where one spouse "claimed to be transsexual." Significantly, the BIA has reaffirmed the longstanding rule that if a marriage is valid in the state in which it is entered into, it should be recognized for immigration purposes.

In Lovo, the petitioner, Ms. Lovo, is a United States citizen, who, in September 2001, underwent sex reassignment surgery. She subsequently obtained a female birth certificate and driver's license. Ms. Lovo married her husband, a citizen of El Salvador, on September 1, 2002 and filed a visa petition on his behalf in November 2002. In support of the I-130 application, Ms. Lovo also submitted an affidavit from her doctor confirming the sex change surgery, a North Carolina court order recognizing her change of name, and a marriage record issued by North Carolina recognizing her marriage to the visa beneficiary. In August 2004, the director of the Nebraska Service Center denied the visa petition and Ms. Lovo appealed the denial with the assistance of the ACLU's Lesbian and Gay Rights Project.

The BIA employed a two prong test to determine the validity of the marriage for immigration purposes. First the BIA discussed whether the marriage was valid under state law and second whether it was valid under the Immigration and Nationality Act ("INA"). The Board determined that because the state of North Carolina had issued a marriage record to the couple listing the petitioner as the bride, the marriage was valid under North Carolina law.

Subsequently, the Board turned its attention to the question of whether the marriage was valid under the INA. The BIA found that the INA did not address the issue of transsexuals and that the Defense of Marriage Act was inapposite as its intent is to prohibit homosexual marriages. The Board found that for immigration purposes, Ms. Lovo had validly entered into a heterosexual marriage under North Carolina law. Noting that regulation of marriage has always been a matter of state law, not federal law, the Board reconfirmed its policy that "the validity of a marriage is determined by the law of the State where the marriage was celebrated." Subsequently, the Board sustained the petitioner's appeal and ordered the immigrant visa approved.

Chris Daley, Director of the Transgender Law Center, expressed gratitude that the BIA issued such a clear precedential decision on an issue which has been causing great harm to a handful of applicants since the CIS issued their discriminatory policy. "We're really happy that the BIA saw how out-of-bounds the current CIS policy is on this issue," he said. "The federal government has always deferred to individual states to define heterosexual marriages and this decision affirms that in no uncertain terms."


About The Author

Victoria Neilson is the Legal Director of Immigration Equality, a national grassroots organization which advocates for equality under the immigration law for lesbian, gay, bisexual, transgender, and HIV positive individuals and their loved ones. For more information, please visit www.immigrationequality.org


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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