Immigration appeals panel relies on state law, overruling homeland security department
The Board of Immigration Appeals has approved a visa petition filed by a transgendered woman on behalf of her male spouse from El Salvador, overturning a denial by the Department of Homeland Security’s Nebraska service center director.
The May 18 ruling, described by the board as an “interim decision,” was based on its conclusion that the marriage between the two is valid under North Carolina law where their ceremony took place.
According to the board’s opinion by Edward R. Grant, the petitioner, Gia Teresa Lovo-Ciccone, married José Mauricio Lovo-Lara, an El Salvadoran citizen, in North Carolina in September 2002. Lovo-Ciccone, recorded as male when born in North Carolina in 1973, had sex-reassignment surgery in 2001, and was issued a new birth certificate designating her as female after she filed documentation regarding her surgery. For purposes of North Carolina law, she is female, and her marriage to José is considered a valid opposite-sex marriage under that state’s law.
However, the director of Homeland Security’s National Service Center in Nebraska turned down her petition, reasoning that the question of defining marriage for immigration purposes is one of federal law, that under the Defense of Marriage Act (DOMA) only opposite-sex marriages can be recognized and that although some states and foreign 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.”
Homeland Security concluded the couple’s union was not a valid opposite-sex marriage.
Lovo-Ciccone appealed this ruling to the Board of Immigration Appeals, represented by Sharon McGowan of the Lesbian and Gay Rights Project of the American Civil Liberties Union.
Writing for the appeals board, Grant conceded that under DOMA the immigration law must be interpreted to recognize only marriages between one man and one woman, but a review of the act’s legislative history showed that Congress’ concern in passing that law was to forbid federal recognition of marriages between homosexuals.
“Throughout the House Report,” wrote Grant, “the terms ‘same sex’ and ‘homosexual’ are used interchangeably. The House Report also repeatedly refers to the consequences of permitting ‘homosexual couples’ to marry.”
Grant pointed out, however, that at the time DOMA was passed in 1996, at least one state had a judicial precedent recognizing as valid the marriage of a post-operative transsexual, a 1976 New Jersey decision. Also, at that time many states had passed laws, similar to the North Carolina law, extending legal recognition for sex changes and authorizing issuing new birth certificates. The legislative history of DOMA mentions none of these developments.
“Rather,” wrote Grant, “Congress’ focus, as indicated by its consistent reference to homosexuals in the floor discussions and in the House Report, was fixed on, and limited to, the issue of homosexual marriage.”
Thus, in the view of the appeals board, DOMA was not really all that relevant to the issues in the case.
That being the case, the board reverted to its typical practice of treating as valid a marriage considered legal by the jurisdiction where it was performed, in this case North Carolina. Grant found no indication in the Congressional discussions of DOMA of any intention to overrule that consistent practice.
The Homeland Security attorney argued that the appeals board should determine the validity of marriages by reference to “man” and “woman” defined by chromosomes, but the board was unwilling to go down that route, trumping this simplistic argument with a sophisticated reference to Julie Greenberg’s definitive law review article, “Defining Male and Female: Intersexuality and the Collision Between Law and Biology,” published in the Arizona Law Review in 1999. Greenberg lists eight different factors that scientists use to determine an individual’s sex, only one of which is genetic sex. Several courts have been influenced by Greenberg’s article to adopt a more sophisticated view of sex and gender, and so was the board, stating, “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.”
Since Homeland Security had not raised any other objection to the petition and conceded that the marriage was valid under North Carolina law, there was no need for the board to send the case back for reconsideration. Instead, it ordered that the visa petition be approved.
This decision could be appealed by the Department of Homeland Security to the federal courts.