A lawsuit filed against the U.S. Citizenship and Immigration Services alleges the agency discriminated against a Filipino couple when it denied the husband's legal residency because his wife had a sex-change operation nearly 24 years ago.
Jiffy Javenella, 27, entered the country as a legal resident in 2001 as Donita Ganzon's fiance and applied for permanent resident status after marrying Ganzon later that year. But during interviews with immigration agents earlier this year, Ganzon, 58, revealed that she had undergone a male-to-female sex-change operation in 1981.
Within three weeks, the agency denied Javenella's application for permanent residency and revoked his working papers, according to the couple's lawsuit filed in U.S. district court on Monday.
The Department of Homeland Security said in a letter to Javenella explaining its decision that "currently, no federal statute or regulation addresses specifically the question whether someone born a man or a woman can surgically change his or her sex."
The letter cited an internal memorandum dated April 16, 2004, that said CIS policy "disallows recognition of change of sex in order for a marriage between two persons born of the same sex to be considered bona fide." The memo refers to the 1996 Defense of Marriage Act--which defines marriage for federal purposes as a union between a man and a woman--to support its position.
Marie Sebrechts, CIS spokeswoman, said she could not comment on pending litigation. She declined to answer questions about the agency's policy on recognizing marriages involving transgenders.
Philip Abramowitz, the couple's attorney, said Javenella is now living illegally in the United States and faces deportation. The decision cannot be appealed, and an immigration judge has not scheduled a hearing that would allow Javenella a chance to reapply, he said. "He's in limbo, he has no alternative at all. He has no work permit, and he lost his job last month because of that," Abramowitz said. "Everything else was fine--she was a U.S. citizen, and the marriage was validly entered into."
Alphonso David, an attorney at Lambda Legal who specializes in transgender lawsuits, said the suit is likely the first to challenge the CIS in federal court over the immigration status of married transsexuals. Lambda Legal is currently handling four lawsuits nationwide that deal with the recognition of
transsexuals' status, but it is not involved in the couple's case, David said. "I'm certainly not aware of any other cases where the [CIS] is interpreting or disregarding someone's sex reassignment," he said. "It's a little problematic because they're saying that someone who has been living as a woman for 24 years now...will be treated as a male."
David said the decision also sets up a conflict between state and federal law, because California is one of about 25 states that reissues birth certificates to transsexuals after sex-change operations and legally recognizes them as their new gender.
Sharon Dulberg, a San Francisco attorney who has a transgender immigration case before the Board of Immigration Appeals, said she is aware of two other cases nationwide in which an immigrant was denied legal status because of a transsexual marriage. Those cases, which were handled within the agency, were both remanded to CIS for reconsideration by the appeals board.
Ganzon, a registered nurse, was born in the Philippines and has lived in the United States for more than 25 years, Abramowitz said. She was granted U.S. citizenship in 1987--six years after her sex-change operation--and given a certificate that listed her sex as female, the lawsuit said. The couple met in the Philippines in 2000, and Javenella was granted legal residence in the United States on June 5, 2001. The couple married in Las Vegas on November 21, 2001.
The lawsuit also names as defendants Atty. Gen. John Ashcroft; Secretary of Homeland Security Tom Ridge; William Yates, CIS associate director for operations; and Jane Arellano, director of CIS's Los Angeles district office.