Tag: married

Appeals Court Upholds U.S. Citizenship of Child Born Abroad to Married Gay Dads

Appeals Court Upholds U.S. Citizenship of Child Born Abroad to

A panel of the U.S. Court of Appeals for the Ninth Circuit last Friday unanimously upheld a lower court ruling recognizing the birthright citizenship of a boy born abroad by surrogacy to two married gay dads, one of whom is a U.S. citizen. The Trump Administration’s State Department had refused to recognize the dads’ marriage and tried to deny the boy’s citizenship—even though it recognized his twin brother as a citizen.

Dvash-Banks Family

U.S. citizen Andrew Dvash-Banks and his husband, Israeli citizen Elad Dvash-Banks, had met while Andrew was studying in Israel. They were unable to live together in the U.S. because of the Defense of Marriage Act (DOMA), so they married and settled in Canada, where they had twin sons through surrogacy. After the U.S. Supreme Court in its 2013 Windsor decision repealed key parts of DOMA, they relocated to California in July 2017 in order to be near Andrew’s family.

When they sought recognition of the twins’ U.S. citizenship, however, the State Department demanded DNA tests and other documentation of their biological relationships to the boys. Aiden was conceived with the Andrew’s sperm and his twin brother Ethan with Elad’s sperm, so the State Department treated Ethan as if he was born out of wedlock, denying him citizenship while granting it to Aiden. Ethan thus had to enter the U.S. on a tourist visa, which expired in December 2017, putting him at risk of deportation.

According to Immigration Equality, however, which represented the Dvash-Banks (in conjunction with pro bono lawyers from Sullivan & Cromwell), the law imposes no biological requirement. The family therefore filed a lawsuit against the State Department, and in February 2019, the U.S. District Court for the Central District of California ruled in their favor, recognizing Ethan’s birthright citizenship. In May, the State Department appealed that decision to the Ninth Circuit Court of Appeals.

Friday, a three-judge panel of the Ninth Circuit asserted that the District court had correctly applied settled Circuit case law affirming that the section of the Immigration and Nationality Act (INA) pertaining to married couples, “does not require a biological relationship between a child and the citizen parent through whom citizenship is claimed.” That means that both of the Dvash-Banks twins are U.S. citizens.

Immigration Equality noted, though, that Friday’s ruling “does not extend to the unknown number of families affected by the State Department’s policy.” What we do know is that three other same-sex couples besides the Dvash-Banks have also sued the department because of its policy: the U.S. District Court for the District of Maryland ruled in one two-dad family’s favor in June; the U.S. District Court for the Northern District of Georgia found in favor of another at the end of August; and a two-mom family is awaiting movement in their case in New Jersey, after a federal judge in Washington, D.C. rejected the State Department’s motion to dismiss it and leave their child a non-citizen. (See more about them in my February 2019 piece.) The district courts in Maryland and Georgia both found, like the Ninth Circuit, that a biological relationship with a citizen parent is not necessary for a child to claim citizenship.

It remains an open question whether the State Department will further appeal any of these rulings. The next step for the Dvash-Banks’ case would be the Supreme Court (or, though I think less likely, the full Ninth Circuit), though SCOTUS might be unlikely to take the case until other appeals courts have weighed in on the similar cases. If all of the courts find in favor of the families, however, then SCOTUS might not even want to review any of the cases, since one of the main reasons for them to do so is when there are conflicting decisions among the circuit courts. Having said that, it sometimes also takes them “if the case could have national significance … or could have precedential value,” per the United States Courts website. Are these nationally significant? Marriage equality certainly is. Beyond that, I will leave it to the lawyers to speculate. I will opine, however, that a Biden State Department might support these families and others like them by quickly changing its policy, which would make any continuation of these cases unnecessary.

Learn more at Immigration Equality about the Dvash-Banks’ and the other three same-sex couples that have sued the State Department to ensure their children’s citizenship.

Federal Court Orders U.S. State Dept. to Recognize Citizenship of Child with Married Same-Sex Parents

Federal Court Orders U.S. State Dept. to Recognize Citizenship of

A federal court yesterday ordered the U.S. State Department to recognize the citizenship of the two-year-old daughter of a married two-dad couple, both U.S. citizens, in the second immigration victory for same-sex parents this summer.

Derek Mize, Jonathan Gregg, and daughter Simone Mize-Gregg. Photo credit: Lambda Legal

Derek Mize, Jonathan Gregg, and daughter Simone Mize-Gregg. Photo credit: Lambda Legal

The U.S. District Court for the Northern District of Georgia told the State Department that it must recognize the citizenship of Simone Mize-Gregg, daughter of Derek Mize and Jonathan Gregg, who married in New York in 2015 and now live in Atlanta, Georgia. In 2018, they had Simone via surrogacy in England and both fathers are listed on her birth certificate, Lambda Legal tells us. When they applied for recognition of Simone’s U.S. citizenship, however, the U.S. consulate in London rejected their application. Although both men are U.S. citizens, only one of them has a biological connection to Simone.

The State Department chose to disregard the men’s marriage and treat Simone as if she was born out of wedlock, although, as Lambda Legal explains, “The Immigration and Nationality Act [INA] states that children of married U.S. citizens born abroad are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point.” Despite this, “the State Department routinely denies that right to same-sex couples and their marital children.”

The couple sued the State Department in July 2019 with the help of Lambda Legal, Immigration Equality, and pro bono counsel Morgan Lewis. The court yesterday found that the INA “does not require children to share a biological relationship with both citizen parents in order for those children to acquire citizenship at birth.”

Omar Gonzalez-Pagan, senior counsel and health care strategist at Lambda Legal, said “The agency’s policy was irreconcilable with the law and our Constitution’s guarantee to equality because it treated the children of married, same-sex parents differently from the children of other married parents.”

This past June, another married two-dad couple in Maryland won a similar lawsuit against the Trump administration’s State Department—but the State Department has appealed. It has also appealed a 2019 ruling that found in favor of a married, two-dad family in California trying to secure citizenship for their child. And a two-mom family and their two sons in New Jersey are also still fighting the State Department for their right to be legally recognized as a family. (See more about them in my February 2019 piece.)

Aaron C. Morris, executive director of Immigration Equality, said of Mize and Gregg’s victory, “We celebrate the court’s decision, which acknowledges what has been true since the day she was born. Simone Mize-Gregg is a citizen of the United States. Today’s decision in Georgia reaffirms what every other federal court who has heard this issue has held: family means more than biology alone. The State Department should change its discriminatory and unconstitutional policy immediately before it hurts another family.”

Hear, hear.

Raven-Symoné and Miranda Pearman-Maday are married!

Raven-Symoné and Miranda Pearman-Maday are married!

Raven-Symoné and Miranda Pearman-Maday are married!