FAMILIES
US Folding Tent on Bi-National Family Citizenship?
Government withdraws appeals of district court rulings weeks after Ninth Circuit defeat
BY PAUL SCHINDLER
Less than three weeks
after a federal appellate
court ruled that a child
born in Canada to a gay
bi-national couple — in which one
father was an American citizen and
his husband, the boy’s biological
father, was an Israeli citizen — was
an American citizen from birth,
the State Department has dropped
its appeals of district court rulings
in two other similar cases.
On October 9, the Ninth Circuit
Court of Appeals affi rmed a 2019
ruling by a federal district court in
California that Ethan, the second
of two boys born together through
surrogacy to Andrew and Elad
Dvash-Banks, enjoyed the same
citizenship rights as his brother
Aiden, whose biological father is
Andrew.
This case and the two in which
the State Department dropped its
appeals on October 26 all involve
the interpretation of immigration
law concerning the citizenship status
of children born outside the
US when only one of the parents
is an American citizen. If a couple,
both of whom are Americans, have
a child outside the country that
child is automatically deemed a US
citizen from birth. In cases where
only one parent is a US citizen,
however, the State Department for
many years has taken the position
that the child can only be considered
a US citizen from birth if the
child is biologically related to the
US citizen parent.
The State Department’s position,
to date, fl ies in the face of what is
known as the spousal parental presumption,
which in its origins was
a legal presumption that the husband
of a woman who gives birth
to a child is that child’s father for
legal purposes. That presumption
is now applied in US law to samesex
married couples and allows
the spouse of the child’s biological
mother or father to be listed as a
parent on the birth certifi cate.
In considering the citizenship
status of the two Dvash-Banks
infants, who now live with their
Roee and Adiel Kiviti’s two children, both of whom are now recognized as US citizens from birth.
Derek Mize and Jonathan Gregg and their daughter Simone.
fathers in California, the State Department
applied an internal policy
that deemed both boys as born
out of wedlock, even though their
fathers were married at the time of
their birth. As a result, no spousal
parental presumption kicked in to
benefi t Ethan.
The Ninth Circuit rejected the
State Department’s interpretation
of immigration law, and ruled in
favor of the Dvash-Banks family.
The two cases in which the State
Department withdrew its appeals
this week involve similar issues,
but varied circumstances.
In June of this year, a federal
district court in Maryland ruled
LAMBDA LEGAL
IMMIGRATION EQUALITY
that Kessem Kiviti, the daughter of
two gay men, Roee and Adiel Kiviti,
has been a US citizen from birth,
despite the State Department’s assertion
that because Adiel was her
biological father and she was born
through surrogacy in Canada she
was ineligible for a US passport.
The specifi cs in the Kiviti case
are different than those of the
Dvash-Banks family. Both Roee
and Adiel were born in Israel, but
Roee was naturalized as a US citizen
in 2001, while Adiel did not become
a citizen until February 2019,
four years after the couple began
living in the US. Kessem was born
a month after Adiel became a US
citizen, but because he had not
lived in the US for fi ve years prior
to her birth (a requirement under
State Department policy), she was
viewed in the same way Ethan
Dvash-Banks had been — as a
child born out of wedlock who was
not a US citizen at birth.
The Maryland federal court decided
otherwise.
In the second case the State
Department withdrew from this
week, a federal district court in
Georgia ruled that Simone Mize-
Gregg, the daughter of Derek Mize
and Jonathan Gregg, was a US
citizen from birth despite the State
Department’s refusal to credit the
fact that both of her fathers themselves
were US citizens from birth.
Gregg, Simone’s biological father,
was born in London to an English
father and an American mother,
which gave him American citizenship
from birth. However, he was
raised in Britain and only moved
to the US permanently after he
married Mize in 2014. Because Simone
was born in Britain through
surrogacy in 2018 and Gregg did
not meet the State Department’s
fi ve-year US residency requirement,
she was also deemed a child
born out of wedlock —with her
other dad, Mize, given no spousal
parental presumption at her birth
by the US government.
As with the Ninth Circuit and
the Maryland district court, the
Georgia federal judge disagreed
with the State Department’s position.
Now that the State Department
has withdrawn appeals of the two
district court rulings, the question
is whether it is waving a white fl ag
in the face of an adverse ruling
from a federal appellate court.
“Unsurprisingly the government
has given us no reason for their
withdrawing, and I don’t want to
put words into the State Department’s
mouth,” Aaron C. Morris,
the executive director of Immigration
Equality, told Gay City News
on October 27.
Morris went on to say, however,
➤ BI-NATIONAL FAMILIES, continued on p.31
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