LOS ANGELES – A lawsuit Monday claimed a Filipino husband was denied permanent U.S. residency because his wife had a sex change operation (search). U.S. officials cited the 1996 Defense of Marriage Act (search) in their reason for the rejection.
Experts said the couple's lawsuit may be the first to challenge the government in court over the immigration status of married transsexuals.
Jiffy Javenella, 27, now faces deportation, the couple's attorney Philip Abramowitz said. "He's in limbo, he has no alternative at all," he said.
Javenella's wife, Donita Ganzon, 58, was granted citizenship in 1987 — six years after her sex change operation — and given a certificate that listed her sex as female, the lawsuit said.
Javenella entered the country as a legal resident in 2001 as Ganzon's fiance, and applied for permanent resident status after the couple married in Las Vegas (search) in 2001.
But according to the lawsuit, Ganzon revealed — during interviews with immigration agents earlier this year — that she had undergone a male-to-female sex change operation in 1981. Within three weeks, the agency denied Javenella's application and revoked his working papers.
The Department of Homeland Security said in a letter to Javenella 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 memo that said Citizenship and Immigration Services 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 cites the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman, to support its position.
Attorney Sharon Dulberg, who has a transsexual immigration case before the Board of Immigration Appeals, said she was 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 Citizenship and Immigration for reconsideration by the appeals board.
CIS spokeswoman Marie Sebrechts said she could not comment on pending litigation. She declined to answer questions about the agency's policy on recognizing transsexual marriages.
The lawsuit names as defendants, among others, CIS, Attorney General John Ashcroft and Secretary of Homeland Security Tom Ridge.