In re Lovo-Lara
| Decision Date | 18 May 2005 |
| Docket Number | File A95 076 067,IInterim Decision Number 3512 |
| Parties | In re Jose Mauricio LOVO-Lara, Beneficiary of a visa petition filed by Gia Teresa LOVO-Ciccone, Petitioner |
| Court | U.S. DOJ Board of Immigration Appeals |
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.
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. However, 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. Consequently, 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.
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.
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. See Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982). The issue of the validity of a marriage under State law is generally governed by the law of the place of celebration of the marriage. Id. at 1038-39.
In this case, the petitioner and the beneficiary were married in North Carolina. Section 51-1 of the General Statutes of North Carolina provides that "[a] valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other." The terms "male" and "female" are not defined in the statute, but section 51-1 makes it clear by its terms that the State of North Carolina does not permit individuals of the same sex to marry each other. See also N.C. Gen. Stat. § 51-1.2 (2004).
Section 130A-118 of the General Statutes of North Carolina governs the amendment of birth certificates. That statute provides, in relevant part, as follows:
A new certificate of birth shall be made by the State Registrar when:
. . .
(4) A written request from an individual is received by the State Registrar to change the sex on that individual's birth record because of sex reassignment surgery, if the request is accompanied by a notarized statement from the physician who performed the sex reassignment surgery or from a physician licensed to practice medicine who has examined the individual and can certify that the person has undergone sex reassignment surgery.
N.C. Gen. Stat. § 130A-118(b)(4) (2004).
As noted above, the documents submitted by the petitioner reflect that she underwent sex reassignment surgery. Consequently, the State of North Carolina issued her a new birth certificate that lists her sex as female and registered her marriage to the beneficiary, listing her as the bride. In light of the above, 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.
DOMA § 3(a), 110 Stat. at 2419 (codified at 1 U.S.C. § 7 (2000)).
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.
This interpretation is further supported by the legislative history of the DOMA. The House Report specifically states that the DOMA was introduced in response to a 1993 decision of the Hawaii Supreme Court that raised the issue of the potential legality of...
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