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.
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 After the U.S. Supreme Court in its 2013 Windsor decision repealed key parts of DOMA, they relocated to California in July 2017 in order to be near Andrew’s family.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.