Transgender Couple Fight INS Action

This is a modern love story.

Although they lived on opposite sides of the Atlantic, Katherine and Pat Spray became friends on the Internet in 1995. That summer, the pair were between jobs, so they decided to tour the United States, putting 15,000 miles on two cars in three months.

Somewhere on the interstate, they say, they fell in love.

They married while visiting a friend in North Carolina, applied for a marriage-based visa for Katherine, and settled down in Virginia.

Now the Immigration and Naturalization Service is trying to ship Katherine back to Ireland and has threatened to prosecute the couple on charges of marriage fraud.

The reason, the Sprays contend, is bigotry: Katherine, born Damien Niland, lived as a man until 1991. Pat, once known as Patricia, was born female but now lives as a man.

Immigration officials won’t discuss the Sprays’ case, but in official documents, the INS questioned Katherine’s marriage-based visa application because Pat Spray did not disclose a 1975 marriage, and the INS discovered it had not been properly dissolved.

The Sprays don’t believe that. “They are hunting us, and the only reason we can think of is that we are transgendered,” said Katherine Spray, 31. “They want me gone.”

The Sprays acknowledge their application contained that flaw. But several immigration lawyers say the INS usually allows applicants to fix such problems.

“It’s fairly common for people to have invalid divorces. . . . Under those circumstances, you let them fix it. Why not, especially if it’s an honest mistake?” said Michael Maggio, a Washington immigration lawyer not connected to the case. “The reality is that we live in a country where, although it is much better on gay rights, homophobia still rules.”

The Sprays said the INS has accused them of having a sham marriage and a same-sex marriage and threatened them with immediate imprisonment unless they withdrew their application.

INS District Director Warren Lewis has ordered Katherine’s immediate expulsion, according to INS documents. The couple have hired attorney Rex Wingerter, who is negotiating with the INS and planning to file a federal lawsuit.

William Bittner, the INS officer in charge of the Norfolk, Va., office, which is handling the application, confirmed the case has been forwarded for criminal prosecution but declined to comment further. The U.S. attorney’s office would not comment.

As anti-immigrant sentiment rose in the mid-1990s, the INS came under increasing pressure to weed out inappropriate applications. Successful immigration-fraud prosecutions are up 9% nationwide in the first six months of fiscal 2000 over the same period in 1999, said INS spokesman Russ Bergeron. About 40% of those are marriage-fraud cases.

Katherine, who was born with external male genitalia and raised as a boy, learned in 1991 that medical tests had revealed male and female chromosomes (two X and one Y), as well as one ovary and a vestigial uterus. Katherine now has long hair, pierced ears and eyebrows, and hormone-induced breasts. Norfolk Circuit Court approved a name change to Katherine Spray in 1996.

Doctors told Pat Spray’s family that blood tests detected unusually high levels of testosterone for a girl. Pat lived as a woman until the 1990s, marrying two men and giving birth to a daughter in 1980.

“I’ve always been one of the guys,” said Pat, 44. “My second husband was so frustrated, because basically I’m a guy, and he was trying to treat me like a woman and it wasn’t working.”

It was the first marriage that was the troublesome one. Patricia Spray and John Martin split up in Texas in 1978, and both say they thought the other had obtained a divorce. Martin, 57, said he has remarried and declined to comment further. Martin and Spray filed for divorce in May in Alexandria Circuit Court, in Virginia.

Pat and Katherine married in September 1995 in Winston-Salem, N.C. Their relationship was a revelation, they say.

“When you’re transgendered, you figure you’re stuck on your own for the rest of your life because it’s too weird,” Katherine said. “Then I got here and found someone I could trust, someone who wouldn’t laugh and wouldn’t try to make me do something if I couldn’t.”

The couple moved to Norfolk, found work and filed the visa application in 1996. Two years later, Katherine, who had a temporary work permit because of the application, bought a townhouse in Virginia Beach, court records show.

For reasons that remain unclear, the INS did not act on the Sprays’ application until this year. By then, Katherine was working at UUNet as a server operations team leader and moved to the Washington suburb of Sterling, Va. Pat followed, starting a job in April at a suburban Rockville, Md., consulting firm.

But the Sprays never changed their INS application to reflect the move to Sterling, and experts said that may have raised a red flag. The INS usually checks to see that marriage visa applicants are living together, and in this case, investigators would have found a mostly empty house.

The Sprays say the INS investigators were hostile from the start. At a first interview in March, the examiner accused Pat, then between jobs, of freeloading on Katherine in exchange for supporting the application, the couple said.

The Sprays say that at the second interview, on Easter Sunday, the INS officer said Katherine would be thrown into a male detention facility if they did not withdraw their application. UUNet terminated Katherine’s employment after the INS contacted the company to say the temporary work permit was no longer valid, a UUNet spokeswoman said.

For the Sprays, the message is clear. “They’re gunning for us,” Katherine said. “Everything they’ve done is to scare us into either leaving the country or doing something stupid that would give them legitimate grounds to kick me out.”