Family Law

This Baby’s Parents Are Both U.S. Citizens, But The U.S. Government Says She Isn’t One

Is the State Department applying these immigration provisions selectively in order to discriminate against LGBT couples?

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Simone Mize-Gregg is the legal daughter of two parents who are U.S. citizens, but the federal government says that she, herself, is not one. How is that even possible? This is another terrible case that reads like an Immigration Law final exam question. But unfortunately, there’s a lot more at stake than just 1L grades.

One of Simone’s dads is James Mize, who was born and raised in Mississippi. In fact, Mize explained that he is ”very, very, very Mississippi.”  Mize says he just wants “the house with the front porch and two kids running around the yard. I want to go to church on Sunday and have a simple life.”

Simone’s other dad, Jonathan Gregg, was born to a mother who was a citizen of the United States, and a father who was a citizen of the United Kingdom. Nevertheless, Gregg is and always has been a U.S. citizen through his mother, despite being born and raised in the United Kingdom. Mize and Gregg married in 2015 in New York, and, like many couples, decided to have children together. Simone Mize-Gregg was born in England through the help of assisted reproductive technology, involving an egg donor and a friend volunteering to be Mize and Gregg’s gestational surrogate. Gregg is Simone’s genetic father, although the only one who’s ever cared about that is the U.S. State Department. Another fact the U.S. State Department is concerned about is that Gregg lived in the U.S. for only four years prior to his daughter’s birth.

Simone has a birth certificate issued in the United Kingdom, which accurately includes both dads as her legal parents. However, when Mize and Gregg set out to confirm their daughter’s U.S. citizenship, they were ruthlessly denied. They were told that “since a woman outside of the couple’s marriage had carried Simone, the baby was born out of wedlock. Mize was not recognized as her father.” Given that Mize and Gregg were legally married, and were the legal parents of Simone, that outcome makes little sense.

The best that the State Department would offer was a travel visa for Simone. As a result, the couple — who live and work in Atlanta — have been forced to inconveniently travel back and forth to England to constantly renew her visa. To make matters worse, Gregg was recently diagnosed with a brain tumor, and had to undergo surgery in November. He is being treated for the remaining cancer and to improve his vision, which currently prevents him from being able to drive. That means that a rough situation has been made even worse by the State Department’s refusal to recognize their family.

Mize and Greg have brought a lawsuit against the State Department on behalf of their daughter, arguing that the State Department has both wrongly applied the Immigration and Naturalization Act (the “Act”) to their family, as well as unconstitutionally discriminated against their family on the basis of sex. Mize and Gregg filed in the United State District Court for the Northern District of Georgia.

This case may sound a bit like deja vu to readers.

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This Is At Least The Fourth Case to Go Public

This is happening over and over again. And it is heartbreaking. Over the last few years, the U.S. State Department has repeatedly made life more difficult for married same-sex couples, and denied their children U.S. citizenship. The first case to hit the media occurred when only one of two twins was being granted citizenship, while the other twin was denied citizenship. I previously wrote about the Dvash-Banks case, where Andrew Dvash-Banks (a dual U.S.-Canadian citizen) and his husband, Elad Dvash-Banks (an Israeli citizen) had married and were residing in Canada when they started their family with the help of an anonymous egg donor and a gestational surrogate. The twins were born in Canada, and the Canadian government recognized both dads as the legal parents to both twins, without any distinction. However, when the couple moved to bring their family closer to relatives in Los Angeles, the U.S. State Department saw an important distinction between the boys. The State Department demanded DNA testing, which showed that one twin was genetically relate to Andrew (the U.S. citizen) and one to Elad (the Israeli citizen). The State Department denied citizenship to the twin genetically related to Elad.

Like any good Americans, they sued. And won! The federal district court found in their favor that the State Department had incorrectly applied the “unwed” sections of Immigration Code instead of recognizing Andrew as a parent of both twins. The court ordered that the child be granted an American passport. Happy ending, right? Not so fast. The State Department has appealed. And that’s where the case currently stands.

Will It Get Worse?

Section 301 of the Immigration Code offers a number of ways that someone can claim citizenship. One way — an easier way — involves having two parents who are U.S. citizens, if one of the parents lived in the U.S. before the birth. That’s literally and legally what happened here. But the State Department is saying that James Mize — our friend from Mississippi — is not technically a “parent” of Simone under the statute, since he isn’t genetically related to the child. Instead, the State Department is saying that another — harder — provision applies; that one says that if one of the parents is a foreign national, the U.S. citizen parent must have been in the U.S. for five years. Here, Jonathan Gregg has only lived in the U.S. for four years, and thus can’t establish citizenship for his daughter.

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Advocates for LGBT families say that this is blatant discrimination based on sex. But theoretically, straight couples could face the same issues if they use egg donors or surrogates overseas. The government contends that the law is applied across the board, but the application of the State Department’s discretionary DNA requests to same-sex couples tells a different story. Rather than move the needle in the right direction (recognizing the marriages of same-sex couples and the citizenship of their children), the State Department might opt to “level down” in practice. So instead of stopping the harassment of same-sex couples and requiring DNA tests, they might begin requiring all children born abroad to any U.S. citizen to undergo DNA testing, and to require evidence as to who gave birth to the child. And then, regardless of marital status or sexual orientation, potentially prevent any citizen who used assisted reproductive technology — whether that be a sperm donor, egg donor, embryo donation, or a gestational carrier — from obtaining American citizenship for the child.

I spoke with Aaron C. Morris, Executive Direct of Immigration Equality. Morris did not share my concern. He noted that the State Department was applying these provisions selectively in order to discriminate against LGBT couples, and that it was “deeply disappointing, but not surprising, given the Administration’s overall stance on immigration and the LGBT community.”

Either way, Morris and I agree that these families should be recognized and supported and their children’s U.S. citizenship acknowledged. Parents should be recognized — and able to pass on their citizenship to their children — regardless of outdated notions of blood, birth, or marriage.

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 [email protected].

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