Family Law

Court Rules 2-Year-Old Can Be A U.S. Citizen… Just Like His Twin Brother

Could it be? A happy ending for when unfortunate U.S. immigration policy and assisted reproductive technology collide?

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In September 2016, a married same-sex couple living in Canada was delighted by the birth of their twin sons. Soon after the birth, one of the men, a U.S. citizen, accepted a job offer back home in Los Angeles near his family. So the couple took steps to move the family from Canada to the Golden State. But trouble came quickly. When the couple presented their twin sons at the U.S. Consulate in Canada for documentation of the children’s U.S. citizenship, they were shocked by the official determination made by immigration officials: only one twin was entitled to U.S. citizenship, while the other was not!

You may recall this case. Andrew and Elad Dvash-Banks, are the twins’ fathers. Andrew, a dual U.S.-Canadian citizen, met his husband Elad, an Israeli citizen, while studying in Israel. They moved to Canada together, got married, and, as many married couples do, made plans for children. They conceived their sons with the help of assisted reproductive technology, an anonymous egg donor, and a surrogate. But they did something that would initially have significant legal consequences. Of the two embryos transferred to their surrogate, Andrew was genetically related to one, and Elad to the other. In Canada, both men were legally confirmed as both boys’ parents, equally and without issue.

Despite the twins having the same legal parents, the U.S. consulate rejected the son conceived with Elad’s sperm, since Elad was never a U.S. citizen. Despite the harsh rejection, the family proceeded with their relocation to the U.S. Initially, the non-citizen twin boy was on a travel visa, but that quickly expired. At that point, he wasn’t legally in the U.S., and the couple lived in fear that officials would one day show up at their door.

The couple brought suit against the U.S. government on behalf of their son. They received pro bono help from Immigration Equality and the Biglaw firm of Sullivan & Cromwell. Take note, attorneys at Sullivan & Cromwell! You can do extremely interesting pro bono work there.

Wedlock and Genetics.

In Dvash-Banks v. Pompeo, the U.S. government argued that immigration officials had properly followed the State Department’s internal Foreign Affairs Manual by requiring proof of a genetic connection between the foreign-born child and the U.S. citizen. Because the DNA results showed that U.S. citizen, Andrew Dvash-Banks, was not genetically related to one of his sons, that son was not entitled to U.S. citizenship. For the State Department it was as simple as that.

The Dvash-Banks couple, however, countered that the Foreign Affairs Manual did not properly apply the law. While there is a genetic-connection requirement in 8 U.S.C. Sec. 1409 (“Section 309”) of the Immigration and Nationality Act, that section is specifically applicable to children “born out of wedlock.” A totally different section (“Section 301”) confers U.S. citizenship to children “born” to parents where one parent is a U.S. citizen, without requiring a genetic connection. Since the couple was married at the time of the birth of the twins, it was this statute that applied, said the couple.

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But the government argued that a child is not “born” to one of the parents if the child is not genetically connected to that parent. In other words, Section 301 only applied if both parents were genetically tied to the child. However, the court followed precedent from the Ninth Circuit Court of Appeals that held that “if Congress had wanted to ensure that a person born to married parents, only one of whom was a U.S. citizen, actually shares a blood relationship with an American citizen, it knew how to do so, as it had done in Section 309.” So the Ninth Circuit expressly refused to defer to the Foreign Affairs Manual, concluding that it was “so divergent from the statutory language as to not even be appropriately considered.” Take that, administrative deference!

The court also cited to a precedent involving a child born outside of the U.S., genetically related to his Mexican-citizen father who was married to a U.S. citizen. The government had argued that the child was born out of wedlock because he was born to a woman not married to his genetic father. However, the Ninth Circuit found that he was, in fact, born in wedlock because his father was married at that time of his birth, and, therefore, the child was entitled to U.S. citizenship from his father’s spouse. The Dvash-Banks case is way more compelling — and understandable, even — than that fact pattern, so this was an easy call for the court.

Was It Enough?

Of course, this may not be over. The government may appeal the district court’s ruling to the Ninth Circuit. From there, it could go all the way to the U.S. Supreme Court. But frankly, that seems like a lot of effort just to deny citizenship to a child who has a dad (and a twin brother) who are already American citizens.

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Ellen TrachmanEllen 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.

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