The petition of a fully transitioned New York transgender woman who has been a U.S. citizen since 1996 to sponsor her foreign-born husband for citizenship has slipped through the cracks of U.S. governmental bureaucracy.
Melissa, whose name has been changed to protect her identity, has legally changed her name and possesses a U.S. passport issued in her proper name and gender; she has licenses from two different states where she is correctly identified; she is recognized under her new name by the IRS for tax purposes and has been issued a new social security card in her female name.
But the Department of Immigration and Naturalization has denied her request to reissue her naturalization certificate with her female name and gender identity—a certificate she needs in order to sponsor her foreign-born husband for a green card.
"I was surprised that all these other branches of government would have no problem," Melissa said, questioning the logic of the Department of Immigration and Naturalization, which falls under the umbrella of the Department of Homeland Security. "If they're really talking about homeland security, they couldn't ask a citizen any more than what I'm doing."
According to Victoria Neilson, legal director at Immigration Equality, a 2004 office memo from the Immigration Department states that in instances where an individual claims to be a transsexual, any documentation, whether it's original or replacement, should reflect the outward claimed and otherwise documented sex of the applicant at the time the document is issued.
"For example," the memo reads, "an alien with an approved application to register permanent residence who underwent sex reassignment surgery shall be issued a permanent resident card reflecting the claimed sex of the alien at the time of issuance provided the alien submits appropriate medical or other documentation establishing the alien's new claimed gender and legal name."
Based on the memo, Neilson said, "It seems pretty clear-cut that the point is, for security reasons, that a government issued identity document is supposed to match the way the person actually looks."
Though the department's denial notice itself stated that a legal name change is in fact grounds for reissuing a naturalization certificate, Melissa's application was denied by Immigration on the basis of her sex change. "This application is not for changing the sex as indicated on the original certificate. Your application is hereby denied as a matter of law," read the denial notice.
"They denied it saying they have no jurisdiction to do this when in fact, she did legally change her name," said Neilson.
Given the fact that Melissa does have a valid 2002 U.S. Passport in her female name and gender, Neilson also noted that it seems contradictory for Melissa to have two different federally issued identity documents in different names and genders. Passports are issued by the U.S. State Department.
Without her proper naturalization papers, the second hurdle Melissa faces is that of sponsoring her husband for a green card.
While the 2004 Immigration Department memo was good for transgender people on the identity documents issue, Neilson said it was bad for them on marriage issues. "It basically said anyone who claims to be transgender will not have their marriage recognized for immigration purposes," she explained.
However, the Board of Immigration Appeals did issue a precedent-setting decision in a North Carolina case in 2005. The Matter of Lovo-Lara found that as long as there is no local or state law against recognizing a marriage where one spouse is transgender, a marriage between a transgender individual and their opposite-sex partner should be seen as a valid marriage.
"Because there's no federal family law, Immigration has always looked to the law of the state where it was entered into," said Neilson.
Melissa and her husband, who have been married about a year and a half, met with an immigration officer on Monday.
"The officer said, ‘This is an unusual issue and I can't get a decision to you today,'" recounted Neilson, adding, "It shouldn't be uncharted territory—officers should listen to what the Board of Immigration Appeals said."
The Immigration officer's decision on whether to validate Melissa's marriage is supposed to come in six months, at which point the green card will either be approved, denied, or the case will go under further review.
"My biggest worry right now is that my petition for my husband will be declined and he will be sent back," Melissa said.
