Metro Weekly

Federal court hears oral arguments over gay couple’s daughter’s citizenship

State Department refuses to recognize the citizenship of children of legally married same-sex couples born abroad

gay, couple, daughter, citizen
Roee and Adiel Kiviti and their children – Photo: Lambda Legal.

On Friday, the U.S. District Court for the District of Maryland heard oral arguments in the case of the Trump administration’s refusal to recognize the U.S. citizenship of the daughter of a gay married couple.

Roee Kiviti, who was 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 have a son, Lev, who is recognized as a 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 refuses to recognize the Kivitis’ marriage or Roee’s relationship to Kessem, and thus, Kessem’s citizenship.

The Immigration and Nationality Act of 1965 states that children of married U.S. citizens born abroad are U.S. citizens from birth, so long as one of their parents has lived in the United States at some point.

But in the Kiviti’s case, the State Department claims Kessem doesn’t meet the criteria for citizenship because she is not the biological daughter of a U.S. citizen parent who has resident in the United States for five years — even though she would be recognized if she was the child of a heterosexual couple.

“The law could not be clearer on this issue:  the marital child of two U.S. citizens, who is born abroad, is automatically a U.S. citizen,” Omar Gonzalez-Pagan, a senior attorney for Lambda Legal, said in a statement. “The Department of State has sought to enforce a ‘biological relationship’ requirement that cannot be found in the law, and that inappropriately interferes with the constitutional rights of married same-sex couples and their children. We are grateful to have had an opportunity to explain to the court, through a virtual hearing, why the State Department’s policy is unmoored from the law and raises grave constitutional concerns.”

Last week, a separate federal court in Georgia heard oral arguments in a similar case involving the daughter of another binational couple, Derek Mize and Jonathan Gregg, whose citizenship rights are not being recognized by the State Department.

“The State Department’s position that children born during the course of a marriage are actually born ‘out of wedlock’ is absurd, in stark contrast to statutory law, and unconstitutional,” Aaron C. Morris, the executive director of Immigration Equality, which is also representing the Kivitis, said in a statement. “Every federal court that has addressed the issue has rejected the government’s arguments. The State Department should change its discriminatory policy immediately. And, until it does, we will continue to fight for the dignity and protection of children like Kessem.”

“What we want for our daughter — especially in times of unrest — is to be able to live free of discrimination and to have access to the full rights she deserves as a born American,” the Kivitis said in a statement. “We only ask for equal treatment, and for the government to recognize her as the U.S. citizen she is.”

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