After a long fought legal battle with the State Department, a federal judge in California recently ruled that a twin son of a binational same-sex married couple is entitled to birthright U.S. citizenship, after only one of the twins was granted the status. The historical ruling sheds light on the unique immigration challenges facing binational LGBTQ couples and is a strong indication that the State Department’s policy requiring a foreign born child be biologically related to a U.S. citizen parent needs to be changed.

Andrew and Elad Dvash-Banks were married in 2010 and settled in Canada. At the time, same-sex marriage was not legal in Andrew’s home state of California and not recognized for immigration purposes. In 2016, twin boys, Aiden and Ethan were conceived using donor eggs and the sperm from each respective father — one an American, the other an Israeli citizen — but born by the same surrogate mother a few minutes apart in Canada. Aiden shares DNA with Andrew, an American, while Ethan is biologically related to Elad, an Israeli citizen.

Four months after their birth, Andrew and Elad appeared in person at the U.S. Consulate in Toronto to apply for their children’s citizenship. Andrew and Elad provided the Consular Officer with required documentation, including the boys’ Statements of Live Birth, which identified Andrew and Elad as parents, evidence of Andrew’s U.S. citizenship and residency history, and the couple’s marriage certificate. The Consular Officer told the married couple that she had the discretion to require a DNA test to establish who the biological father was of each boy, and stated absent a DNA test biologically linking Andrew to both children, neither child would qualify for U.S. citizenship. Andrew and Elad, though shocked, complied and Andrew underwent DNA testing, the results of which established that Aiden was biologically related to Andrew but Ethan was not.

On March 2, 2017, Aiden received his passport by mail, while Ethan received a letter denying his application. In making its decision, the State Department erroneously applied the policy governing children born out of wedlock to married couples in light of the fact that the case involved a married same-sex couple. Specifically, the State Department applied Act 309 of the Immigration and Nationality Act, which applies to families with “children born out of wedlock.” The correct policy is Act 301, which unlike Act 309, does not mention the necessity of a “blood relationship” between the child and parent who is a U.S. citizen. Nothing in Section 301 references a biological relationship requirement or suggests that in using the words “parent” or “born . . . of parents,” Congress intended to refer only to biological or genetic parents. However, by including a “blood relationship” requirement in Section 309, Congress made it clear that it intended children born in and out of wedlock to be treated differently for purposes of acquiring U.S. citizenship.

The family entered the United States after securing a B2 tourist visa for Ethan, valid for only a six-month period. In January of 2018, the family sued the State Department, seeking the same rights for Ethan and arguing the State Department had discriminated against same-sex binational couples by refusing to acknowledge the marital status of same-sex parents in denying their child birthright citizenship.

The decision delivered this past Thursday concluded that under controlling Ninth Circuit authority, Section 301 does not require a child to show a biological relationship with both of their parents if their parents were married at the time of birth. The landmark ruling, though not able to change Department of State policy, brings to light an issue that affects countless same-sex married couples and the importance that the law be applied equally, regardless of whether a child is the product of a heterosexual or same-sex marriage. As an example, if a married man and woman were to apply for citizenship on behalf of their children with a marriage certificate and a birth certificate, they would not be asked to provide evidence confirming the biological ties to both parents.

The judge requested that the State Department issue a decision consistent with his ruling by the end of the month. Although this is a groundbreaking decision, the Court stopped short of striking down the State Department’s policy and will not necessarily apply to other families in similar situations. The hope, however, is that the decision will be persuasive to other courts and compel the government to change its policy voluntarily.


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