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The U.S. State Department has appealed a June ruling by a federal judge in Maryland recognizing the citizenship of Kessem Kiviti, the daughter of two married gay U.S. citizens, who was born via surrogacy in Canada in February 2019.
The issue at the crux of the case involves the State Department’s refusal to recognize the legal marriage of Roee Kiviti, a U.S. citizen since 1993 who had been living abroad in Israel for years, and Adiel Kiviti, an Israeli-born naturalized citizen who has lived in the United States since 2015 and obtained citizenship a month before Kessem was born.
Under the Immigration and Nationality Act of 1965, children of legally married U.S. citizens born abroad are considered U.S. citizens from birth, so long as one of their parents has lived in the United States at some point. Had Kessem been born to a married heterosexual couple, she would have been considered a citizen.
But the State Department has refused to recognize the Kivitis’ marriage as valid, meaning that it is has classified Kessem as “born out of wedlock.”
If a child is born outside of a legally recognized marriage, they are only eligible for automatic citizenship if their U.S. citizen parent has lived in the United States for more than five years.
Unfortunately for Kessem, because she is biologically related to Adiel, who had lived in the United States for less than four years prior to her birth, the State Department refuses to recognize her citizenship and will not issue her a U.S. passport.
Interestingly, the Kivitis previously had a son, Lev, who is recognized as a U.S. citizen despite being conceived via surrogacy in Canada in 2016. But because the State Department, under the Obama administration, recognized the Kivitis’ marriage as legal, Lev’s citizenship has never been questioned.
The Kivitis filed a lawsuit in July 2019 demanding that the State Department issue Kessem a passport. Following much legal wrangling, in June 2020, U.S. District Court Judge Theodore Chuang ruled in favor of the Kivitis, ordering the State Department to recognize Kessem’s citizenship.
In his opinion, Chuang said the State Department’s current application of its policy on children of U.S. citizens born abroad, and its refusal to recognize same-sex marriages, subjects same-sex couples to disparate treatment by refusing to recognize their parental ties.
In appealing Chuang’s decision, the State Department sends the case to the 4th U.S. Circuit Court of Appeals.
The government has previously argued that its decision requiring that Kessem show evidence of a biological relationship to both parents is required by the language of the Immigration and Nationality Act, and that no rights are being violated by its refusal to recognize Kessem’s citizenship.
The Kivitis and their lawyers, with Lambda Legal and Immigration Equality, lamented the appeal and the State Department’s intransigence.
“Once again, the State Department is refusing to recognize Roee and Adiel’s rights as a married couple,” Aaron C. Morris, the executive director of Immigration Equality and co-counsel on the case. “The government’s attempts to strip Kessem of citizenship are unconstitutional, discriminatory, and morally reprehensible.”
“It’s sad that we have to continue this legal battle,” Roee Kiviti said in a statement. “But we are undeterred. We are doing this not just for our daughter and our family, but so that other families won’t have to.”
The Kivitis are not the only same-sex couple to have their child’s citizenship questioned. In February 2019 — the same month that Kessem was born — a federal judge granted citizenship to the twin sons (born via the same surrogate) of a Los Angeles-based binational couple, Elad and Andrew Dvash-Banks, who sued after one twin was granted citizenship but the other was denied a U.S. passport because he did was not biologically related to Andrew, who was born in the United States.
More recently, a gay U.S. citizen couple in Georgia, Derek Mize and Jonathan Gregg, asked a federal judge in Georgia to order the State Department to recognize the citizenship of their daughter, Simone Mize-Gregg, who has been denied citizenship for the same reasons as Kessem Kiviti.
“A federal court has already found the Department of State’s policy to be contrary to the law and to raise grave constitutional concerns,” Omar-Gonzalez Pagan, a senior staff attorney at Lambda Legal, said in a statement.
“It is unconscionable, though not surprising, for this administration to further appeal a policy so clearly at odds with the law and that is harmful to LGBTQ families,” Pagan said. “We will continue to fight for the Kivitis’ right to be recognized as a family, and Kessem’s right to be recognized as a U.S. citizen since birth.”
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