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Transformation: the Progression of Immigration Petitions for Transgender Spouses

Authors

  • Elanie J. Cintron

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    • This Note is the result of the great effort and support of many individuals to whom I extend my utmost appreciation and gratitude. Thank you to Ms. Stevie Tran for allowing me to be a part of your transition and opening my eyes to the unique set of struggles transgender individuals face. Your courage is the inspiration behind this Note. Thank you to my family, the staff of Family Court Review, and faculty at Maurice A. Deane School of Law at Hofstra University for your encouragement and willingness to lend a helping hand throughout the Note-writing process. Thank you to Professor Andrew Schepard and Courtney Rodriguez for continuing to have faith in this Note throughout the numerous months of edits. Thank you to Laura Damiano for your wisdom during the early stages of this Note. Thank you to Geoffrey Greenlees for your constant companionship throughout this process. Thank you to Aara Shaikh, Brittany Reiner, Fauzia Amlani, Captain Rosalyn Naval, Stephen Piraino, and Tanya Mir for your encouragement during countless late nights. Thank you to Rachel Goldenberg for your continued optimism throughout the numerous revisions. Thank you to Elise S. Dunton, for your unwavering belief in both this Note and my ability to raise awareness through the words on the page. I cannot thank you enough for your patience and guidance.

Correspondence: ecintron05@gmail.com

Abstract

U.S. citizens who marry foreign nationals may petition for their spouses so that the couple can reside permanently together in the United States. The guidelines set forth in the U.S. Citizenship and Immigration Services Adjudicator's Field Manual provide guidance to immigration officials for determining whether to grant or deny spousal petitions. Previously, the Adjudicator's Field Manual imposed a requirement that transgender individuals undergo costly and dangerous sex reassignment surgery in order to qualify as married for the purposes of a spousal petition. However, revisions to the Adjudicator's Field Manual issued in April 2012 provide transgender binational couples the opportunity to remain together in the United States without forcing one partner to undergo sex reassignment surgery. Given the history of discrimination against transgender individuals under U.S. immigration law, these revisions are a significant step in equality for transgender couples. Although these revisions provide many transgender binational couples with a means to remain together in the United States, this Note proposes that, to continue on the path toward equality for transgender couples, special guidelines should not be applied to marriages involving transgender partners if their marriage is deemed a valid heterosexual marriage in the state where solemnized. The goals of U.S. immigration law and compliance with the federal definition of marriage can be achieved without implementing individualized guidelines for transgender binational couples.

Key Points for the Family Court Community:

  • Transgender spouses of a binational couple should not be subjected to additional guidelines when submitting spousal petitions that, if granted, would afford the couple the opportunity to reside together in the United States
  • Transgender individuals should not be subjected to disparate treatment solely because the U.S. Citizenship and Immigration Services seeks to enforce discriminatory provisions of the Defense of Marriage Act
  • A marriage should be recognized by immigration law if it is a valid marriage under the law of the state where the marriage was celebrated
  • In order to achieve U.S. immigration law's mission of family unification, nontraditional couples should be afforded the same opportunity to remain together in the United States without additional scrutiny

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