Man Denied US Citizenship Because Wife Is Transsexual

Man Denied US Citizenship Because Wife Is Transsexual
by Gillian Flaccus, Associated Press

Posted: November 30, 2004 12:01 am

(Los Angeles, California) A lawsuit filed Monday 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.

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 calls on the 1996 Defense of Marriage Act which defines marriage for federal purposes as 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 transsexual marriages.

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 transsexual lawsuits, said the suit is likely the first to challenge the INS 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 is not involved in the couple's case, David said.

``I'm certainly not aware of any other cases where the INS 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 is 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 reissue birth certificates to transsexuals after sex change operations and legally recognize them as their new gender.

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 Nov. 21, 2001.

The lawsuit also names as defendants Attorney General John Ashcroft; Secretary of Homeland Security Tom Ridge; William Yates, CIS associate director for operations; and Jane Arellano, director of CIS' Los Angeles district office.

©Associated Press 2004