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Two binational same-sex couples on Monday filed federal lawsuits against the State Department after their children were denied U.S. citizenship.
Andrew Dvash-Banks, who was born in Santa Monica, Calif., and his husband, Elad Dvash-Banks, who was born in Israel, were married in Toronto in 2010. The two men decided to live in Canada because the Defense of Marriage Act that President Clinton signed in 1996 prevented Andrew Dvash-Banks from sponsoring Elad Dvash-Banks for immigration purposes.
A surrogate gave birth to the men’s twin boys — Aiden Dvash-Banks and Ethan Dvash-Banks — in Mississauga, Ontario, on Sept. 16, 2016.
Aiden Dvash-Banks was conceived with Andrew Dvash-Banks’ sperm, while Ethan Dvash-Banks was conceived with Elad Dvash-Banks’ sperm. Canada recognizes both men as their children’s parents.
The 2013 U.S. Supreme Court ruling in the Windsor case that struck down a portion of DOMA prompted the U.S. to legally recognize same-sex marriages performed outside the country. The U.S. Consulate in Toronto nevertheless denied the men’s request for a Consular Report of Birth Abroad — which certifies that a child who was born overseas was an American citizen at the time of their birth — and a U.S. passport for Ethan Dvash-Banks under Section 309 of the Immigration and Naturalization Act that specifically addresses “children born out of wedlock.”
“Focusing improperly on the biological relationship between each child and the parent who conceived him, the State Department then recognized Aiden’s citizenship and denied Ethan’s,” reads the lawsuit that Andrew Dvash-Banks filed in the U.S. District Court for the Central District of California.
The Dvash-Banks family moved to Los Angeles on June 24, 2017.
Andrew Dvash-Banks and Aiden Dvash-Banks are U.S. citizens, while Elad Dvash-Banks is a permanent resident. Ethan Dvash-Banks, who is also a plaintiff in the lawsuit, was able to enter the U.S. on a tourist visa that expired on Dec. 23, 2017.
“All of Andrew and Elad’s professional, personal and familial commitments are in constant jeopardy of being undone if the Department of Homeland Security deports Ethan,” reads the lawsuit.
Andrew Dvash-Banks and Elan Dvash-Banks have applied for a green card for Ethan Dvash-Banks in order “to minimize the risk of deportation proceedings and having to face the choice of staying together as a family or staying in this country.”
“However, Andrew and Elad should not have to bear these additional burdens simply to ensure they can continue to raise their sons together in this country,” reads the lawsuit.
Child ‘without the freedom to’ permanently live in U.S.
Allison Blixt, who was born in Park Ridge, Ill., and her wife, Stefania Zaccari, who was born in Italy, have lived in London since 2008. The two women’s civil partnership became a marriage under British law in 2015.
Zaccari on Jan. 30, 2015, gave birth to Lucas Zaccari-Blixt, who was conceived with her egg and sperm from an “unknown donor.” Blixt on Feb. 25, 2017, gave birth to Massimiliano Zaccari-Blixt, who was conceived with Blixt’s egg and sperm from the same donor.
Blixt in her lawsuit says the U.S. Embassy in London in 2015 denied her and Zaccari’s application for a Consular Report of Birth Abroad and a U.S. passport for Lucas Zaccari-Blixt.
Blixt and Zaccari last May applied for a Consular Report of Birth Abroad and U.S. passport for both of their children. The lawsuit states Massimiliano Zaccari-Blixt’s application was approved, but Lucas Zaccari-Blixt’s was denied “on the ground that Section 309(c) of the INA (Immigration and Naturalization Act) required proof of Lucas’ genetic parental or gestational relationship to Allison regardless of his birth certificate and Allison and Stefania’s marriage.”
Immigration Equality Executive Director Aaron Morris, who represents Blixt and Zaccari and the Dvash-Banks in their respective lawsuits — last September asked the embassy to reconsider its decision to deny the request for a Consular Report of Birth Abroad and a passport for Lucas Zaccari-Blixt. The embassy on Nov. 7 denied the request, noting it had “affirm[ed] that Lucas did not require U.S. citizenship at birth.”
“Allison and Massi may reside in the U.S. permanently because they are U.S. citizens,” states Blixt’s lawsuit, which also names Lucas Zaccari-Blixt as a plaintiff. “Stefania may reside in the U.S. permanently by obtaining a family-based immigrant visa based on her marriage to Allison. The State Department’s policy, however, renders Lucas the only member of his family without the freedom to live in the U.S. permanently.”
“The State Department’s decision to withhold from Lucas the same rights granted to his brother means that he will experience the indignity and stigma of unequal treatment imposed and endorsed by the U.S. government,” adds the lawsuit. “No governmental purpose could justify imposing these indignities on a child of a valid marriage or restricting a family’s freedom to live as a family — together.”
The State Department and Secretary of State Rex Tillerson are named as defendants in both lawsuits.
Children ‘must be biologically related to’ U.S. citizen
The State Department’s Bureau of Consular Affairs on its website says the State Department interprets the Immigration and Naturalization Act “to mean that a child born abroad must be biologically related to a U.S. citizen . . . in order for the child to acquire U.S. citizenship at birth.”
It states a “U.S. citizen father must be the genetic parent of the child and meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth.” The State Department also notes a “U.S. citizen mother must be the genetic and/or the gestational and legal mother of the child at the time and place of the child’s birth and must meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth.”
“Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad through ART (assisted reproductive technology), if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth,” says the Bureau of Consular Affairs on its website.
Both lawsuits allege the policy is unconstitutional because it violates the plaintiffs’ right to due process under the Fifth Amendment. They also state the State Department policy discriminates against the plaintiffs because of their sexual orientation and sex.
There are references to “father,” “mother,” “parent” and “parents” on the Bureau of Consular Affairs’ website that addresses assisted reproductive technology and surrogacy abroad. It does not refer to their sexual orientation or relationship status.
“The State Department is refusing to acknowledge the citizenship of children whose parents are same-sex married couples,” said Morris in a press release. “This policy is not only illegal, it is unconstitutional.”
An official with the State Department on Monday told the Washington Blade it does “not comment on pending litigation.”
The lawsuits were filed a year after President Trump took office.
Advocates in the U.S. and around the world have sharply criticized the White House over its immigration policies that includes ending the Deferred Action for Childhood Arrivals (DACA) program that has allowed roughly 800,000 young undocumented immigrants to remain in the U.S. and obtain work permits.
Blixt’s lawsuit states the U.S. Embassy in London denied the request for a Consular Report of Birth Abroad and a passport for Lucas Zaccari-Blixt before Trump’s inauguration. The Dvash-Banks moved to Los Angeles roughly five months after Trump took office.
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.