The U.S. Is Trying to Deport A Two-Year-Old Child, Even Though It Recognizes His Twin Brother As A U.S. Citizen

This family's situation should be on a law school final exam.

This case made us sit up and gasp when it first happened, and then appeared to be justly resolved and closed.  But not so fast.  It’s still going, and is now back to making headlines for all of the wrong reasons.

For those of you following the case, you will recall that Andrew and Elad Dvash-Banks are a same-sex male married couple, just trying to raise their children in peace like most families. The problem, however, is that while Andrew is a U.S.-Canadian dual citizen, Elad is an Israeli citizen. The two met while Andrew was in graduate school in Israel. They then moved to Canada together, where same-sex marriage was legal (although it wasn’t yet legal in the United States). With the assistance of an anonymous egg donor and a surrogate, the couple had twin boys.

Shortly after the twins’ birth, Andrew accepted a job back in his home state of California. Looking forward to being near extended family with their young twins, the couple made plans to move to the Golden State. However, when they presented their twin sons at the U.S. Consulate in Toronto to obtain American passports for the children, the dads were shocked at the agent’s demand for DNA testing. While the twins were conceived with the same egg donor and carried at the same time by the same surrogate, one is genetically related to Andrew and one to Elad.

When the couple came back and presented the test results to the U.S. Consulate, only Aiden (the child genetically related to Andrew) was granted a U.S. passport, while Ethan (the child genetically related to Elad) was denied a U.S. passport. This strange result happened despite the fact that under Canadian law, both dads were listed on both children’s birth certificates, and both dads were equally considered the parents of both children in Canada. Nevertheless, the United States opted to strictly focus on genetics, instead of family.

The family moved to the U.S. anyway, despite the passport issue, with Ethan on a mere visitor visa. But as that visa quickly expired, the fathers took their case to federal court. They successfully argued before the federal district court that the U.S. State Department had incorrectly applied a clause of the Immigration and Nationality Act (the “Act”) that applies only to non-married parents, and requires a biological connection between a parent and a child. Instead, the court held, the State Department ought to have applied the section of the Act that applies to married couples, and does not require a biological connection. After reviewing the plain language of the Act, as well as well-established case law in the Ninth Circuit that touched on the issue, the court ruled in the parents’ favor, and ordered that Ethan be issued a U.S. passport.

The Appeal. 

Now, Foggy Bottom is appealing the court’s decision in favor of the child to the Ninth Circuit Court of Appeals. Immigration Equality, a non-profit organization that has been representing the Dvash-Bankses in their legal case, spoke out about the State Department’s unwillingness to leave well enough alone. “The State Department is refusing to recognize Andrew and Elad’s rights as a married couple,” explained Aaron Morris, executive director of Immigration Equality.

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Given the case precedent in the Ninth Circuit, it seems likely that the Court of Appeals will rule in favor of the Dvash-Bankses. Which likely means the Department of State is gearing for the case to either go en banc to the full Ninth Circuit, or all the way to the U.S. Supreme Court. But if SCOTUS should decide to take the case, would it really choose to deny citizenship to a sympathetic child on such facts, simultaneously undermining Obergefell (recognizing same-sex marriage as a Constitutional right) and its subsequent summary reversal in Pavan (reiterating that the Constitutional right to same-sex marriage, per Obergefell, includes the “constellation of benefits that States have linked to marriage” such as children)? I’d like to think not. But, honestly, I didn’t expect the State Department to appeal.

In the meantime, the district court’s ruling still stands, and little Ethan still has a U.S. Passport. So his family does not need to fear his deportation — yet.


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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