Over the past few years, the United States government has denied citizenship to multiple children of LGBTQ+ married couples born abroad, arguing that the children fall under a portion of the immigration code that applies to unwed couples. The results have been anomalous, to say the least, and include the government granting one twin (but not the other) citizenship, as well as children born of *two* United States citizen-parents being denied citizenship. Last week, a lawsuit challenging those decisions achieved a major win. The federal district court in Maryland issued an opinion squarely on the side of the LGBTQ+ parents and their child.
Good Facts Sometimes Make Good Law
Roee and Adiel Kiviti are a same-sex male couple. They met in 2011 and married in 2013. Roee was born in Israel but raised from the age of 4 in the United States. He was naturalized as a United States citizen in 2001. Roee and Adiel met in Israel, but they later moved to the United States, and Adiel gained United States citizenship in 2019.
Like many couples, the two wanted to raise a family. As a gay couple, they pursued the route of surrogacy. Their two children were born in Canada (known for its actual affordable healthcare) in 2016 and 2019, respectively. With each child, a court in Canada issued an order that Roee and Adiel were legal parents of the child. In 2016, when their son was born, and they applied for his passport, the passport was issued promptly, and without the Kivitis being asked who was genetically related to the child.
In 2019, with the birth of their daughter, the passport application process did not go as smoothly. Their daughter was, to the Kivitis’ surprise, denied citizenship. The State Department stated that she fell under the “unwed” parents section of the immigration code that has more onerous residency requirements that Adiel, the genetic parent, did not meet. And Roee, for immigration purposes, was not acknowledged by the United States government as a parent to their child.
With the help of Immigration Equality, Lambda Legal, and the pro bono counsel Morgan Lewis, the parents brought a lawsuit against the U.S. government.
Win #1: Plain Language And A Little Judicial Shade
The State Department’s justification for the denial of citizenship was that the child fell into the section of the immigration code of “unwed” parents. How can that be, since her parents were, you know, wed? The government argued that the “wed” section’s language of a child “born… of parents” means that the child must be genetically related to *both* parents to be “born of” them. The State Department further argued that it does not matter if the parents are LGBTQ+; if the child is not genetically related to both parents of the married couple, the child’s citizenship must be analyzed under the “unwed” section. And that section has a longer residency requirement to confer citizenship on a child.
The Kivitis argued that the plain language of the statute does not require a genetic connection between both parents and the child. Further, to read a biological connection requirement into the statute would ignore a long history of common law cases that recognize a “marital presumption” — acknowledging the spouse of a parent as the child’s other parent, regardless of biological connection.
The court fully agreed with the Kivitis, throwing a bit of shade at the State Department in the process. The court describes how that State Department cited no evidence that their specific statutory interpretation was known to Congress other than “an unsupported and uncited statement in the current version of the FAM” (the State Department’s own manual that is written internally without public comment). The FAM states that the “blood relationship” interpretation dates back to 1790. The court dismissed this argument roundly, noting that it was highly unlikely that in 1790 they were doing blood tests to ensure a genetic relationship between parent and child.
The happy result was a ruling for plaintiffs that the Kivitis’ daughter is, in fact, a Unites States citizen from birth, per the plain language of the immigration code. However, the court did not stop there.
Win #2: Constitutional Avoidance
The plaintiffs argued that if the language of the statue were to be found ambiguous, the court should rule in favor the plaintiffs’ interpretation in order to avoid the constitutional problems that would arise from the State Department’s interpretation. Generally, courts go to great lengths to interpret or narrow statutes in order to avoid what would otherwise be a finding of unconstitutionality.
The State Department argued that its “biological connection” policy was not targeting LGBTQ+ couples, and applied to all couples. However, the State Department conceded that immigration agents were not required to inquire as to whether applicants for citizenship had a biological connection to their parents. Instead, it was in each agent’s discretion to choose whether to require applicants to provide information relating to a genetic connection between the parents and the child.
Of course, an agent was most likely to raise the question when same-sex couples were applying, since that would be a tip-off that one parent might not have a genetic relationship to the child. Indeed, the State Department acknowledged that a same-sex male couple could never qualify as a “wed” couple under the government’s interpretation. This sort of treatment was enough to raise doubts regarding the constitutionality of the State Department’s interpretation, particularly under two Supreme Court cases establishing a right to same-sex marriage and the “constellation” of benefits accompanying marriage.
The Court didn’t need to rely on the avoidance doctrine, since it had already ruled on the basis of the plain text. But the secondary reasoning makes this decision especially difficult to appeal if it goes to the Fourth Circuit Court of Appeals, since the District Court ruled on two separate grounds for the plaintiffs.
In short, the ruling was a slam dunk for the Kivitis, and a promising sign for same-sex parents in the other open cases against the State Department. It is also great news for not only future LGBTQ+ parents but all couples who turn to the assistance of reproductive technology to achieve their families.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.