A judge for the US District Court for the Central District of California on Thursday granted a twin son of a same-sex couple US birthright citizenship.
The State Department refused to grant two-year-old Ethan Dvash-Banks citizenship but granted his twin brother citizenship. Ethan and his twin brother, Aiden, were born from the same surrogate mother; but each was conceived using a different parental sperm—Ethan, the biological product of Elad, an Israeli citizen, and Aiden, the biological product of Andrew, an American citizen.
Plaintiffs argued that the State Department’s refusal to grant Ethan US citizenship amounted to discrimination against same-sex couples and same-sex marriages. The State Department asserted that in order to qualify for birthright citizen, that the baby must have a ‘biological connection” to a US citizen. According to the Immigration and Nationality Act (INA), a person born outside the US to parents, one being a US citizen who has residency in the US for at least five years, is entitled to US citizenship.
Judge John Walter cited to three cases, all in which the Department lost under the same reasoning: the State Department had no legal authority for requiring legally married parents to prove a child is their biological child in such cases where the parent satisfies the residency requirement under INA Section 301(g). He further opines that Ninth Circuit precedent makes it clear that Section 301(g) application “is not limited to biological parents and that the presumption of legitimacy that applies when a child is born to married parents … cannot be rebutted by evidence that the child does not have a biological tie to a U.S. citizen parent.”
Walter, however, did not order the Department to modify its policy, the Foreign Affairs Manual, but that its interpretative of INA is “strained” and not supported by the clear language in the statute, which continues to be the subject of lawsuits for cases like this.
