Elad and Andrew Dvash-Banks and their sons – Photo: Immigration Equality.
The U.S. State Department announced earlier this week that it is appealing a federal court decision that granted citizenship to the son of a binational gay couple whose biological father is an Israeli citizen.
Andrew and Elad Dvash-Banks sued the State Department for refusing to recognize their son, Ethan, as a U.S. citizen, after the couple moved to the United States from Canada with their twin sons in January 2017.
The twins were conceived with donor eggs and carried to term by the same surrogate mother before being born in September 2016, in Ontario, Canada. Each boy was conceived using sperm from a different father, with Andrew, an American citizen, fathering Aiden, and Elad fathering Ethan.
They attempted to obtain U.S. passports for both sons, arguing that because Andrew is an American citizen and recognized as the legal father of the twins, both boys should be considered American citizens as well.
In February, U.S. District Judge John Walter of the Central District of California wrote in his opinion finding in favor of the Dvash-Banks family that a biological connection was not necessary for the child of binational parents to benefit from birthright citizenship.
Furthermore, he posited, the only difference between the Dvash-Banks case and others where the children of heterosexual binational couples had been recognized as U.S. citizens was the gender of their fathers.
On Monday, the State Department appealed that decision. Some liberal activists believe this is an attempt to get the 9th U.S. Circuit Court of Appeals — which now counts 12 recently confirmed Trump appointees among its ranks — to overturn existing precedent.
While the department, as a matter of practice, refuses to comment on pending litigation, guidance on its website states that it interprets the Immigration and Nationality Act of 1965 as providing that “a child born abroad must be biologically related to a U.S. citizen parent…in order for the child to acquire U.S. citizenship at birth.”
In his earlier decision, Walter called that interpretation “strained,” noting that such a requirement was neither approved by Congress, nor did it come about through the normal rule-making process requiring public notice and comment.
Immigration Equality, which is representing the Dvash-Banks family, as well as a lesbian binational couple whose son was born abroad in Italy in a separate case, blasted the State Department’s decision to appeal Walter’s decision.
“Once again, the State Department is refusing to recognize Andrew and Elad’s rights as a married couple,” Aaron Morris, the executive director of Immigration Equality, said in a statement. “The government’s decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible. This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship.”
“We’re outraged that the State Department is so intent on harming our family and the LGBTQ community,” Andrew and Elad Dvash-Banks said in a joint statement. “The fight is not over, and we will not rest until our family is treated fairly and equally. Nothing can tear us apart. The four of us are unbreakable.”