Cite as 23 I&N Dec. 746 (BIA 2005) Interim Decision #3512 

In re Jose Mauricio LOVO-Lara, Beneficiary of a visa petition 

filed by Gia Teresa LOVO-Ciccone, Petitioner 

File A95 076 067 - Nebraska Service Center 

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. 

FOR PETITIONER: Sharon M. McGowan, Esquire, New York, New York 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Allen Kenny, Service Center 

Counsel 

BEFORE: Board Panel: GRANT, HESS and PAULEY, Board Members. 

GRANT, Board Member: 

In a decision dated August 3, 2004, the Nebraska Service Center (“NSC”) 

director denied the visa petition filed by the petitioner to accord the 

beneficiary immediate relative status as her husband pursuant to section 

201(b)(2)(A)(i) of the Immigration and Nationality Act, 

8 U.S.C. § 1151(b)(2)(A)(i) (2000). The petitioner has appealed from that 

decision. The appeal will be sustained. 

I. FACTUAL AND PROCEDURAL HISTORY 

The petitioner, a United States citizen, married the beneficiary, a native and 

citizen of El Salvador, in North Carolina on September 1, 2002. On 

November 20, 2002, the petitioner filed the instant visa petition on behalf of 

the beneficiary based on their marriage. The record reflects that when the 

petitioner was born in North Carolina on April 16, 1973, she was of the male 

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sex. However, an affidavit from a physician reflects that on September 14, 

2001, the petitioner had surgery that changed her sex designation completely 

from male to female. 

In support of the visa petition, the petitioner submitted, among other 

documents, her North Carolina birth certificate, which lists her current name 

and indicates that her sex is female; the affidavit from the physician verifying 

the surgery that changed the petitioner’s sex designation; a North Carolina 

court order changing the petitioner’s name to her current name; the North 

Carolina Register of Deeds marriage record reflecting the marriage of the 

petitioner and the beneficiary; and a North Carolina driver’s license listing the 

petitioner’s current name and indicating that her sex is female. 

On August 3, 2004, the NSC director issued his decision denying the 

instant visa petition. In support of his denial, the NSC director stated that 

defining marriage under the immigration laws is a question of Federal law, 

which Congress clarified in 1996 by enacting the Defense of Marriage Act, 

Pub. L. No. 104-199, 110 Stat. 2419 (1996) (“DOMA”). Pursuant to the 

DOMA, in order to qualify as a marriage for purposes of Federal law, one 

partner to the marriage must be a man and the other partner must be a woman. 

In his decision the NSC director stated as follows: 

While some states and countries have enacted laws that permit a person who has 

undergone sex change surgery to legally change the person’s sex from one to the 

other, Congress has not addressed the issue. Consequently, without legislation from 

Congress officially recognizing a marriage where one of the parties has undergone sex 

change surgery . . . , this Service has no legal basis on which to recognize a change 

of sex so that a marriage between two persons born of the same sex can be recognized. 

The NSC director concluded that “since the petitioner and beneficiary were 

born of the same sex, their marriage is not considered valid for immigration 

purposes and the beneficiary is not eligible to be classified as the spouse of the 

petitioner under section 201(b) of the Act.” 

The petitioner filed a timely Notice of Appeal (Form EOIR-29) and 

subsequently filed a brief in support of her appeal. The Department of 

Homeland Security (“DHS”) Service Center Counsel also filed a brief in 

support of the NSC director’s decision. 

II. ISSUE 

The issue presented by this case is whether a marriage between a 

postoperative male-to-female transsexual and a male can be the basis for 

benefits under section 201(b)(2)(A)(i) of the Act, where the State in which the 

marriage occurred recognizes the change in sex of the postoperative 

transsexual and considers the marriage valid. 

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III. ANALYSIS

In order to determine whether a marriage is valid for immigration purposes, 

the relevant analysis involves determining first whether the marriage is valid 

under State law and then whether the marriage qualifies under the Act. See 

Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982). The issue of the 

validity of a marriage under State law is generally governed by the law of the 

place of celebration of the marriage. Id. at 1038-39. 

In this case, the petitioner and the beneficiary were married in North 

Carolina. Section 51-1 of the General Statutes of North Carolina provides that 

“[a] valid and sufficient marriage is created by the consent of a male and 

female person who may lawfully marry, presently to take each other as 

husband and wife, freely, seriously and plainly expressed by each in the 

presence of the other.” The terms “male” and “female” are not defined in the 

statute, but section 51-1 makes it clear by its terms that the State of North 

Carolina does not permit individuals of the same sex to marry each other. See 

also N.C. Gen. Stat. § 51-1.2 (2004). 

Section 130A-118 of the General Statutes of North Carolina governs the 

amendment of birth certificates. That statute provides, in relevant part, as 

follows: 

A new certificate of birth shall be made by the State Registrar when:

 . . . 

(4) A written request from an individual is received by the State Registrar to 

change the sex on that individual’s birth record because of sex reassignment 

surgery, if the request is accompanied by a notarized statement from the physician 

who performed the sex reassignment surgery or from a physician licensed to 

practice medicine who has examined the individual and can certify that the person 

has undergone sex reassignment surgery. 

N.C. Gen. Stat. § 130A-118(b)(4) (2004). 

As noted above, the documents submitted by the petitioner reflect that she 

underwent sex reassignment surgery. Consequently, the State of North 

Carolina issued her a new birth certificate that lists her sex as female and 

registered her marriage to the beneficiary, listing her as the bride. In light of 

the above, we find that the petitioner’s marriage to the beneficiary is 

considered valid under the laws of the State of North Carolina. We also note 

that neither the NSC director nor the DHS counsel has asserted anything to the 

contrary on this point. 

The dispositive issue in this case, therefore, is whether the marriage of the 

petitioner and the beneficiary qualifies as a valid marriage under the Act. 

Section 201(b)(2)(A)(i) of the Act provides for immediate relative 

classification for the “children, spouses, and parents of a citizen of the United 

States.” The Act does not define the word “spouse” in terms of the sex of the 

parties. However, the DOMA did provide a Federal definition of the terms 

“marriage” and “spouse” as follows: 

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In determining the meaning of any Act of Congress, or of any ruling, regulation, or 

interpretation of the various administrative bureaus and agencies of the United States, 

the word ‘marriage’ means only a legal union between one man and one woman as 

husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex 

who is a husband or a wife. 

DOMA § 3(a), 110 Stat. at 2419 (codified at 1 U.S.C. § 7 (2000)). 

Neither the DOMA nor any other Federal law addresses the issue of how 

to define the sex of a postoperative transsexual or such designation’s effect on 

a subsequent marriage of that individual. The failure of Federal law to 

address this issue formed the main basis for the NSC director’s conclusion 

that this marriage cannot be found valid for immigration purposes. As stated 

above, the NSC director found that because Congress had not addressed the 

issue whether sex reassignment surgery serves to change an individual’s sex, 

there was no legal basis on which to recognize a change of sex. Accordingly, 

he concluded that he must consider the marriage between the petitioner and 

the beneficiary to be a marriage between two persons of the same sex, which 

is expressly prohibited by the DOMA. 

In determining the effect of the DOMA on this case, we look to the rules 

of statutory construction. The starting point in statutory construction is the 

language of the statute. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 

(1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). If the language of the 

statute is clear and unambiguous, judicial inquiry is complete, as we clearly 

“must give effect to the unambiguously expressed intent of Congress.” 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 843 (1984). We find that the language of section 3(a) of the DOMA, 

which provides that “the word ‘marriage’ means only a legal union between 

one man and one woman as husband and wife, and the word ‘spouse’ refers 

only to a person of the opposite sex who is a husband or a wife,” is clear on 

its face. There is no question that a valid marriage can only be one between 

a man and a woman. Marriages between same-sex couples are clearly 

excluded. 

This interpretation is further supported by the legislative history of the 

DOMA. The House Report specifically states that the DOMA was introduced 

in response to a 1993 decision of the Hawaii Supreme Court that raised the 

issue of the potential legality of same-sex marriages in Hawaii. See H.R. Rep. 

No. 104-664, at 2-6 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-10, 

1996 WL 391835 (Leg. Hist.) (citing Baehr v. Lewin, 852 P.2d 44 (Haw. 

1993) (remanding for application of strict scrutiny under the Hawaii equal 

protection clause to the question of the denial of marriage licenses to same-sex 

couples)). Throughout the House Report, the terms “same sex” and 

“homosexual” are used interchangeably. The House Report also repeatedly 

refers to the consequences of permitting homosexual couples to marry. 

However, with regard to one of the specific issues we are facing in this 

case, i.e., whether the DOMA applies to invalidate, for Federal purposes, a 

marriage involving a postoperative transsexual, it is notable that Congress did 

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not mention the case of M.T. v. J.T., 355 A.2d 204 (N.J. Super. Ct. App. Div. 

1976), which recognized a transsexual marriage.1 Nor did it mention the 

various State statutes that at the time of consideration of the DOMA provided 

for the legal recognition of a change of sex designation by postoperative 

transsexuals. Rather, Congress’s focus, as indicated by its consistent 

reference to homosexuals in the floor discussions and in the House Report, 

was fixed on, and limited to, the issue of homosexual marriage. 

Furthermore, a specific statement in the House Report’s section-by-section 

analysis provides support for the conclusion that Congress did not consider 

transsexual marriages to be per se violative of the DOMA. According to that 

statement, “Prior to the Hawaii lawsuit, no State has ever permitted 

homosexual couples to marry. Accordingly, federal law could rely on state 

determinations of who was married without risk of inconsistency or endorsing 

same-sex ‘marriage.’” H.R. Rep. No. 104-664, at 30 (emphasis added). As 

noted above, M.T. v. J.T., supra, and the statutory provisions in several States 

recognizing a legal change of sex after surgery were in existence at the time 

the House Report was issued. 

The case of M.T. v. J.T., supra, was decided by the New Jersey Superior Court and 

involved a case where a wife had filed a complaint seeking support and maintenance from 

her husband. Her husband responded with the defense that his wife was actually a 

male-to-female transsexual and therefore their marriage was void. In rejecting his defense, 

the court upheld the validity of the marriage. The court began its analysis by accepting the 

“fundamental premise . . . that a lawful marriage requires the performance of a ceremonial 

marriage of two persons of the opposite sex, a male and a female,” and that New Jersey law 

would not permit recognition of a marriage between persons of the same sex. Id. at 207. 

The court then directly confronted the issue “whether the marriage between a male and a 

postoperative transsexual, who has surgically changed her external sexual anatomy from 

male to female, is to be regarded as a lawful marriage between a man and a woman.” Id. at 

208. The court concluded that “for marital purposes if the anatomical or genital features of 

a genuine transsexual are made to conform to the person’s gender, psyche or psychological 

sex, then identity by sex must be governed by the congruence of these standards.” Id. at 

209. On this basis, the court affirmed the finding of the trial court that the postoperative 

male-to-female transsexual was a female at the time of her marriage and entered into a valid 

marriage. Id. at 211. 

In 1977, the Department of Health, Education, and Welfare prepared a Model State Vital 

Statistics Act that specifically provided for the amendment of a birth certificate upon proof 

of a change of sex by surgical procedure in section 21(e). See In re Heilig, 816 A.2d 68, 

82-83 (Md. 2003). By 1996, at the time of consideration of the DOMA, several States had 

enacted legislation patterned after section 21(e) to provide a mechanism for amending a 

person’s birth certificate to reflect a change of sex upon submission of a court order 

recognizing a sex change by surgical procedure. See, e.g., Ariz. Rev. Stat. § 36-337 (2005) 

(previously at § 36-326); Cal. Health & Safety Code §§ 103425, 103430 (West 2005); Haw. 

Rev. Stat. § 338-17.7 (2003); La. Rev. Stat. Ann. § 40:62 (2004); Mich. Comp. Laws 

§ 333.2831 (2005); Neb. Rev. Stat. § 71-604.01 (2004). A recent review of State legislation 

indicates that 22 States and the District of Columbia have now enacted provisions 

specifically permitting legal recognition of changes of sex by postoperative transsexuals. 

See In re Heilig, supra, at 83 & n.8 (collecting the relevant statutory provisions). 

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We therefore conclude that the legislative history of the DOMA indicates 

that in enacting that statute, Congress only intended to restrict marriages 

between persons of the same sex. There is no indication that the DOMA was 

meant to apply to 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 

There is also nothing in the legislative history to indicate that, other than in 

the limited area of same-sex marriages, Congress sought to overrule our 

long-standing case law holding that there is no Federal definition of marriage 

and that the validity of a particular marriage is determined by the law of the 

State where the marriage was celebrated. See Matter of Hosseinian, 19 I&N 

Dec. 453, 455 (BIA 1987). While we recognize, of course, that the ultimate 

issue of the validity of a marriage for immigration purposes is one of Federal 

law, that law has, from the inception of our nation, recognized that the 

regulation of marriage is almost exclusively a State matter. See, e.g., Boddie 

v. Connecticut, 401 U.S. 371 (1971); Sherrer v. Sherrer, 334 U.S. 343 

(1948).3 Interestingly, with regard to this point, the House Report stated the 

following: 

If Hawaii or some other State eventually recognizes homosexual “marriage,” Section 

3 will mean simply that that “marriage” will not be recognized as a “marriage” for 

purposes of federal law. Other than this narrow federal requirement, the federal 

2 Our conclusion in this regard is consistent with an April 16, 2004, Interoffice 

Memorandum from William R. Yates, Associate Director for Operations of the United 

States Citizenship and Immigration Services (“CIS”), respecting the “Adjudication of 

Petitions and Applications Filed by or on Behalf of, or Document Requests by, Transsexual 

Individuals.” That memorandum acknowledges that “neither the DOMA nor any other 

Federal statute addresses whether a marriage between (for example) a man and a person 

born a man who has undergone surgery to become a woman should be recognized for 

immigration purposes or considered invalid as a same-sex marriage.” 

3 In deference to this fundamental aspect of our system of government, Federal statutes 

purporting to outlaw certain types of marriage are few and far between, and no Federal 

statute affirmatively authorizing a type of marriage appears to exist. Apart from the DOMA, 

the only other Federal statutory provisions purporting to outlaw certain types of marriage 

that our research has discovered are found at section 101(a)(35) of the Act, 8 U.S.C. 

§ 1101(a)(35) (2000), which, in defining the terms “spouse,” “husband,” and “wife” for 

purposes of the Act, specifically excludes recognition of so-called proxy marriages “where 

the contracting parties thereto are not physically in the presence of each other, unless the 

marriage shall have been consummated,” and in the Mann Act, which was construed by the 

Supreme Court to prohibit the interstate transportation of women for purposes of engaging 

in polygamy. See Cleveland v. United States, 329 U.S. 14 (1946); see also section 

212(a)(10)(A) of the Act, 8 U.S.C. § 1182(a)(10)(A) (2000) (rendering inadmissible any 

immigrant coming to the United States to practice polygamy). Section 3(a) of the DOMA 

would also appear to have as an incidental effect the declaration of invalidity of polygamy, 

as it provides that “the word ‘marriage’ means only a legal union between one man and one 

woman as husband and wife.” (Emphasis added.) 

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government will continue to determine marital status in the same manner it does under 

current law. 

H.R. Rep. No. 104-664, at 31 (emphasis added). Therefore, we also conclude 

that Congress need not act affirmatively to authorize recognition of even an 

atypical marriage before such a marriage may be regarded as valid for 

immigration purposes, assuming that the marriage is not deemed invalid under 

applicable State law.4 

The DHS counsel appears to argue that in determining whether a particular 

marriage is valid under the DOMA, we must look to the common meanings 

of the terms “man” and “woman,” as they are used in the DOMA. Counsel 

asserts that these terms can be conclusively defined by an individual’s 

chromosomal pattern, i.e., XX for female and XY for male, because such 

chromosomal patterns are immutable. However, this claim is subject to much 

debate within the medical community. According to medical experts, there 

are actually eight criteria that are typically used to determine an individual’s 

sex. They are as follows: 

1. Genetic or chromosomal sex – XX or XY;

2. Gonadal sex – testes or ovaries;

3. Internal morphologic sex – seminal vesicles/prostate or vagina/uterus/fallopian 

tubes; 

4. External morphologic sex – penis/scrotum or clitoris/labia;

5. Hormonal sex – androgens or estrogens;

6. Phenotypic sex (secondary sexual features) – facial and chest hair or breasts;

7. Assigned sex and gender of rearing; and

8. Sexual identity.

See Julie A. Greenberg, Defining Male and Female: Intersexuality and the 

Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 278 (1999). 

While most individuals are born with 46 XX or XY chromosomes and all 

of the other factors listed above are congruent with their chromosomal pattern, 

there are certain individuals who have what is termed an “intersexual 

condition,” where some of the above factors may be incongruent, or where an 

ambiguity within a factor may exist. Id. at 281. For example, there are 

individuals with a chromosomal ambiguity who do not have the typical 46 XX 

or XY chromosomal pattern but instead have the chromosomal patterns of 

XXX, XXY, XXXY, XYY, XYYY, XYYYY, or XO. Id. Therefore, because 

a chromosomal pattern is not always the most accurate determination of an 

individual’s gender, the DHS counsel’s reliance on chromosomal patterns as 

the ultimate determinative factor is questionable. 

4 This conclusion is entirely consistent with Adams v. Howerton, supra, relied on by the 

DHS. In that case, the court held that even if a homosexual marriage between an American 

citizen and an alien was valid under Colorado law, the parties were not “spouses” under 

section 201(b) of the Act. The court reached its result through an interpretation of section 

201(b) itself and the term “spouse” as used therein, not by finding a general Federal public 

policy against the recognition of such marriages. 

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Moreover, contrary to the suggestion of the DHS counsel, reliance on the 

sex designation provided on an individual’s original birth certificate is not an 

accurate way to determine a person’s gender.5

 Typically, such a determination 

is made by the birth attendant based on the appearance of the external 

genitalia. However, intersexed individuals may have the normal-appearing 

external genitalia of one sex, but have the chromosomal sex of the opposite 

gender. Greenberg, supra, at 283-92. Moreover, many incongruities between 

the above-noted factors for determining a person’s sex, and even some 

ambiguities within a factor, are not discovered until the affected individuals 

reach the age of puberty and their bodies develop differently from what would 

be expected from their assigned gender. Id. at 281-92. 

We are not persuaded by the assertions of the DHS counsel that we should 

rely on a person’s chromosomal pattern or the original birth record’s gender 

designation in determining whether a marriage is between persons of the 

opposite sex. Consequently, for immigration purposes, we find it appropriate 

to determine an individual’s gender based on the designation appearing on the 

current birth certificate issued to that person by the State in which he or she 

was born. 

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 petitioner’s appeal will be sustained, and the visa 

petition will be approved. 

ORDER: The petitioner’s appeal is sustained, and the visa petition is 

approved. 

5 We note that there could be anomalous results if we refuse to recognize a postoperative 

transsexual’s change of sex and instead consider the person to be of the sex determined at 

birth in accordance with the DHS’s suggestion. For example, the marriage of a 

postoperative male-to-female transsexual to a female in a State that recognizes marriages 

between both opposite-sex and same-sex couples would be considered valid, not only under 

State law, but also under Federal law, because, under the DHS’s interpretation, the 

postoperative transsexual would still be considered a male, despite having the external 

genitalia of a female. 

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