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A Maryland gay couple is suing the State Department for refusing to acknowledge their daughter’s U.S. citizenship, despite the fact that they are legally married.
Roee, born in Israel but naturalized as a U.S. citizen in 1993, and Adiel Kiviti, who was born in Israel but recently became a citizen in January 2019, married in California in 2013 but lived abroad until 2015.
The two men already have a son, Lev, who is recognized as a U.S. citizen despite being conceived via surrogacy in Canada in 2016. The couple wanted a second child, and conceived their daughter Kessem using a surrogate in Canada in February 2019.
But because only Adiel has a biological connection to Kessem, the State Department is disregarding the couple’s marriage and treating Kessem as “born out of wedlock,” meaning she must have a biological relationship to a U.S. citizen parent who has resided in the United States for five years.
Although the requirement for citizenship is not meant to be applied to the children of married U.S. citizens — which both men are — the State Department refuses to acknowledge same-sex marriages as legal.
Because it refuses to recognize Roee as Kessem’s legal father, and Adiel has only resided in the United States for four years, the State Department does not acknowledge Kessem’s citizenship.
In response, the couple has filed a federal lawsuit alleging that the State Department of engaging in discrimination by unconstitutionally stripping citizenship rights away from the children of same-sex couples by treating them as children born “out of wedlock.”
“This is a fight for marriage equality. It is a fight for the fundamental right of citizenship,” Aaron C. Morris, executive director of Immigration Equality, which is representing the couple, said in a statement. “By refusing to recognize their rights as a married couple, the State Department is treating Roee and Adiel as second-class citizens and treating Kessem as if she is not a citizen at all. The administration has made abundantly clear it will ignore the law and the Constitution. We will not stand for it.”
Under the Immigration and Nationality Act of 1965, children of married U.S. citizens born abroad are supposed to be considered U.S. citizens from birth so long as one of their parents has resided in the U.S. at some point.
While opposite-sex couples are automatically presumed to be parents of their children, same-sex couples are often subjected to invasive questioning about how their children were conceived, and often forced to meet additional criteria before having their children’s citizenship recognized.
“Kessem was born to two dads. By refusing to recognize Kessem as a U.S. citizen at birth, the Department of State seeks to erase her family ties and to disrespect Roee’s and Adiel’s marriage. This is not only unlawful, it is also cruel and un-American,” Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, which is also representing the Kiviti family, said in a statement.
“The Supreme Court has repeatedly affirmed that same-sex couples are entitled to the same constellation of benefits linked to marriage as different-sex couples,” Gonzalez-Pagan added. “The government cannot refuse to recognize Roee’s and Adiel’s marriage, nor Kessem’s citizenship at birth.”
Immigration Equality and Lambda Legal, along with pro bono counsel, recently filed a similar lawsuit against the State Department in Georgia in July for refusing to recognize a binational gay couple’s daughter as a citizen.
“The focus here is our little girl whose rights are being infringed upon by our government,” the Kivitis said in a statement. “Every parent wants to protect their child, to give them assurances of tomorrow, and this policy isn’t letting us do that. Our daughter will know her story. She will know how she came into this world, she will know about all of the loving people who helped us become a family, and she will know how her parents fought for her rights and for the rights of other families.”
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