The Washington PostDemocracy Dies in Darkness

One twin was a citizen, the other undocumented. A victory in court for their same-sex parents rebukes the State Department.

Elad Dvash-Banks, left, and his partner, Andrew, pose for photos with their twin sons, Ethan, center right, and Aiden in their apartment in Los Angeles in January 2018. (Jae C. Hong/AP)

Ethan and Aiden were born in 2016 four minutes apart, coming from the same womb — a surrogate mom.

They had the same parents, Andrew and Elad Dvash-Banks, and the same toys and outfits.

But when the dads and their sons moved from Canada to Los Angeles months after the boys were born, the twins came across the border differently. Aiden came with a U.S. passport. Ethan had a tourist visa.

In a matter of months, Ethan was an undocumented baby.

The problem was that the U.S. Consulate in Toronto didn’t treat the twins the same, because it treated their parents differently: Andrew is a U.S. citizen, but Elad is an Israeli national. Under birthright citizenship laws, children born abroad to one American parent can typically qualify as a citizen. But not in this case. The Consulate wanted Andrew and Elad to submit to DNA testing — seeking proof of Andrew’s blood relationship to their children.

When the results came back, it was clear that Aiden had Andrew’s blood, and Ethan had Elad’s, a result of the men’s decision to each contribute to one embryo for the surrogacy pregnancy. Without Andrew’s blood, Ethan was denied U.S. citizenship in March 2017.

But on Thursday, after a stressful and uncertain couple of years for the parents and 2-year-old twins, a federal judge ruled that Ethan should have been granted citizenship from birth — and that there was nothing in federal citizenship law to support the State Department’s policy for resorting to DNA testing.

“For two years, this is something that weighed on us every single day," Andrew and Elad Dvash-Banks said in a statement to The Washington Post. "Not knowing whether Ethan would be allowed to stay in the U.S. is something we went to bed with every night. Now, our family is whole and safe.”

U.S. District Judge John F. Walter of the Central District of California found that the State Department had no legal justification for requiring Ethan’s legally married parents to “prove" he was their biological child, saying the State Department put forth a “strained interpretation” of birthright citizenship law — as well as what it means to be a parent. Blood is irrelevant, Walter ruled.

The couple’s attorney, Aaron C. Morris, the executive director of the LGBT-immigrant rights nonprofit Immigration Equality, argued that the State Department’s flawed policy has a disproportionate impact on same-sex couples. If Andrew and Elad had been heterosexual, he argued, the consulate would have been less likely to question their blood relationship to their babies.

“The first impact on [Andrew and Elad] that they will always articulate is they feel deeply disrespected that their family wasn’t being treated like other families,” Morris said. “The question of equality is first and foremost on their minds, both between Andrew and Elad as a married couple and their relationship to their children. For the State Department to tell Andrew that he isn’t really Ethan’s father was deeply upsetting to both of them.”

The State Department said in a statement to The Washington Post Friday that it was “reviewing the ruling in coordination with Department of Justice.”

Morris said that his organization has heard from numerous same-sex, binational couples who have run into the same problem while seeking citizenship for their child. Immigration Equality is also representing another married same-sex couple — two women, one a U.S. citizen and the other a British national — in a similar lawsuit covered by The Washington Post last year: Because the British national was the one to give birth to the baby, their son was denied citizenship.

But while Morris believes same-sex couples are disproportionately affected, it’s a problem, regardless of the genders of the parents, he said. Walter cited three other court cases between 2000 and 2018 involving married heterosexual couples whose children were initially denied citizenship because the American parent lacked a biological connection to the child. The government lost all three times, and each time the reasoning was the same: Contrary to the State Department’s policy, there is no requirement spelled out in the law that a child be biologically related to his parent, the courts ruled, at least not for parents in circumstances like Andrew and Elad.

Given the rulings, Morris said it’s befuddling as to why the State Department has not amended its policy to reflect the law.

“This is not a statute. It’s not a regulation. It’s not required. It is the whim of the State Department to create this rule,” Morris said. “There is no justification for why this is happening over and over, either for same-sex or different-sex couples.”

The requirements for birthright citizenship are relatively straightforward, laid out in the Immigration and Nationality Act.

Of the most basic principles, a baby born on U.S. soil is a citizen (although President Trump has said he wants to end this for children of noncitizens, breaking with decades of constitutional law). If a baby is born abroad to married U.S. citizens, the child is a U.S. citizen. And, as in Andrew and Elad’s case, when one parent is a foreign national and one is a U.S. citizen, the baby can be a citizen as long as his or her American parent has lived in the United States for a period of five years. Andrew had.

The couple met all of the requirements, and yet still they were asked for biological proof.

After the Consulate denied Ethan citizenship, the family ran into not only logistical challenges but also hurtful ones, Morris said.

When the family wanted to travel to Israel to introduce the twins to Elad’s family, Morris warned them it might be too risky, fearing both children might not be allowed back in.

When tax season came around, the fathers ran into trouble. Their son had no Social Security number.

When Ethan’s tourist visa expired in December 2017, the family sought a green card, compelling one of the most hurtful blows of all, Morris said.

Authorities required that Andrew be listed as Ethan’s “stepfather."

The decision by the State Department that put them in this situation — the reliance on a biological test — was based on the State Department’s internal Foreign Affairs Manual policy, one that put forth a poor interpretation of the Immigration and Nationality Act, the judge found.

In applying a biological test, the government was referring to a separate part of the INA that applies to children born abroad out of wedlock. A biological link must be proven in those cases. But why, the judge questioned, would the government apply this statute to Andrew and Elad, who were clearly married at the time the babies were born and were clearly listed as their legal parents?

The government, Walter found, appeared to be extrapolating the language in the “out of wedlock” statute to apply even in cases where the parents were married, requiring a blood relationship to transfer U.S. citizenship. There was no legitimate reason for doing this, Walter ruled. If Congress intended the biological tests to apply in those cases, he wrote, Congress would have said so when it passed the legislation.

To make his point, he quoted the Congressional Record in 1957, which made clear that the purpose of the birthright citizenship law wasn’t intended to make it hard for people to become citizens. It was “concerned with the problem of keeping families of United States citizens and immigrants united.”

As the U.S. Court of Appeals for the Second Circuit wrote in 2018, “The principle guiding this decision — that a child born into a legal marriage is presumed to be the child of the marriage — is a lasting one," one that reflects "the traditional ‘aversion to declaring children illegitimate,’ as well as an interest in promoting familial tranquility through deference to the marital family.”

The consequences of the State Department’s blood-relationship policy can be dire. In two circuit court-level cases cited by Walter, the plaintiffs each faced deportation because the government didn’t believe that their U.S.-citizen parent was biologically related, making them eligible for removal. The rulings halted the deportations but did not force any changes in policy.

“My hope is that they will reassess this position and come to a more sensible conclusion that is more in line with Congress, in line with the statute and more humane to queer families,” Morris said. “But will they? I don’t know. I don’t know how many times they have to be sued before they make this policy change or before a court compels them to, but we are committed to making this right.”

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