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GARBRIEL ARANDA
CARLOS MANUEL - ENGLISH
CARLOS MANUEL - ESPANOL
DAMIAN GOLDVARG
ENSUENOS - ENGLISH
ENSUENOS - ESPANOL
INMIGRACION
IMMIGRATION
ERNIE ALDERETE
MARCIO COCHELLA - ESPANOL
MARCIO COCHELLA - ENGLISH
SAMARA IN THE CITY
JOE
CASTEL
DAVID CARILLO
REY TORRES
DANIEL PEARCE - ENGLISH
DANIEL PEARCE - ESPANOL
ALBERTO OROZCO
ADELANTE STAFF ARTICLE
Previas Ediciónes
Past Editions |
Effects of U.S. Immigration Laws and
Policies on Binational Marriages within the Transgender Community
In February 2002, Robert, a F-M transgender, citizen of Germany, married
his girlfriend, Vicky, a U.S. born female in a beautiful ceremony held in
Las Vegas, NV. Vicky filed an immigrant petition for her husband so he
could immigrate to the U.S. and live with her in California. A year later,
Robert got his green card and now lives with Vicky in a beautiful home in
Silver Lake, CA.
What I have just described is a true story. But if these events had
actually taken place in 2004 instead of 2002, the results would be vastly
different. Vicky’s immigrant petition for Robert would get denied. And
Robert would then be placed in removal proceedings and probably be
deported from the United States. Vicky and Robert could perhaps be
separated forever. Indeed, the simple love story of 2002 would turn into a
Hollywood-style drama, with a very tragic ending.
Why the change in the outcome? Well, before March 2003, the former INS -
now Citizenship and Immigration Services (CIS) – recognized sexes of
transgender individuals at the time of petition or application. Therefore,
Robert, who was born a female, but later, through surgery and hormone
therapy had become a male, could benefit from the petition that Vicky
filed for him since his sex at the time of petition was recognized as a
male.
In March 2003 however, the CIS issued a memo, which changed this sound
reasoning. The memo basically said that before adjudicating any petitions
filed with the CIS, the government must base its decision on the sex of
the applicants as listed on their birth certificates.
In April of 2004, the CIS followed up with another memo that essentially
said that if the sex of the applicants was not pertinent to the immigrant
petition (i.e. employment-based immigration), then the CIS should
recognize the sex at the time of application. However, if the sex of the
applicants was pertinent to the adjudication of the petition (i.e.
family-based immigration), then the CIS should recognize the sex as stated
in the applicants’ birth certificates.
At the very least, the CIS seems to be inconsistent with its logic. On one
hand, it recognizes the sex of a transgender applicant before the
transition, but under a different scenario, it recognizes the sex after
the transition. CIS bases this discrepancy in their logic on the Defense
of Marriage Act (DOMA), which defines marriage under U.S. federal law as
between a man and a woman. This despite the fact that the applicants may
have a court order recognizing the sex change of one or both partners and
a valid marriage certificate by the State that recognizes their marriage!
Immigration advocates have been demanding a more uniform and sensible
policy in this area. To date however, the CIS is steadfast in enforcing
their arbitrary rules.
Certainly, there are many such adjustment (green card) cases within the
transgender community. Unfortunately, some have already been denied and
are now awaiting appellate review. There are many cases however that are
still pending before the CIS. Regardless of which stage of the immigration
process you are at, if you would like to receive further information on
the latest development in this area of immigration law, please feel free
to contact my office for a free consultation.
And as always, I urge you to also contact your Congressional
representatives regarding the injustices that this particular CIS policy
is creating in our community. |