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      Marriage of Transsexual Recognized by DOJ

http://www.usdoj.gov/eoir/vll/intdec/vol23/3512%20.pdf

Decided May 18, 2005
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

1. The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), does not preclude, for purposes of Federal law, recognition of a marriage involving a postoperative transsexual, where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

2. A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1151(b)(2)(A)(i) (2000), where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.

 

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IV. CONCLUSION


We have long held that the validity of a marriage is determined by the law of the State where the marriage was celebrated. The State of North Carolina considers the petitioner to be a female under the law and deems her marriage to the beneficiary to be a valid opposite-sex marriage. We find that the DOMA does not preclude our recognition of this marriage for purposes of Federal law. As the NSC director did not raise any other issues regarding the validity of the marriage, we conclude that the marriage between the petitioner and the beneficiary may be the basis for benefits under section 201(b)(2)(A)(i) of the Act. Accordingly, the petitioners appeal will be sustained, and the visa petition will be approved.

ORDER: The petitioners appeal is sustained, and the visa petition is approved.

Transsexual Marriage Recognized for Visa Petition

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