this is scary (x-posted a little, sorry!)

[chyzar.livejournal.com]

http://www.manilatimes.net/national/2004/dec/01/yehey/top_stories/20041201top9.html

Associated Press, November 29, 2004
Lawsuit: Filipino husband denied U.S. citizenship because wife was
transsexual
GILLIAN FLACCUS

LOS ANGELES - 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.