In a significant victory for same-sex parents, the U.S. State Department on Monday backed down in two cases where it had been challenging the citizenship of children born abroad to married two-dad couples who were U.S. citizens.
The State Department withdrew its appeal in Kiviti vs. Pompeo, a case involving dads Roee and Adiel Kiviti, who legally married in California in 2013, and had their daughter Kessem via surrogacy in Canada in 2019. Because Kessem was born outside the U.S. and only has a biological connection to Adiel, however, the State Department considered Kessem as “born out of wedlock.” The department would not grant her citizenship unless she had a biological relationship to a U.S. citizen parent who had resided in the U.S. for five years. Even though both Roee and Adiel are U.S. citizens, Adiel was born in Israel and was one year short of the residency requirement.
The dads sued the State Department in 2019 with the help of Lambda Legal and Immigration Equality and pro bono counsel Morgan Lewis, arguing that the residency requirement didn’t apply to the children of married U.S. citizens. The U.S. District Court for the District of Maryland ruled in June that Kessem should be granted citizenship and that the Immigration and Nationality Act “does not require a biological relationship with both parents.”
After this week’s withdrawal by the State Department, Roee Kiviti said in a press statement:
We are very relieved, on behalf of our daughter, on behalf of our family, and on behalf of LGBT families across this great country of ours. The law was always clear. We knew it, the courts knew it, and now the State Department knows it, too.
Adiel Kiviti added:
This was never just about us. It was always about standing up for what’s right. We are grateful to those who did it before us, and we are humbled to be a part of the ongoing struggle for justice.
The State Department also said this week that it would not appeal the district court’s decision in Mize-Gregg v. Pompeo, where it had been challenging the citizenship of Simone Mize-Gregg, daughter of U.S. citizen’s Derek Mize and Jonathan Gregg. The men had legally married in New York in 2015 and now live in Atlanta, Georgia. In 2018, they had Simone via surrogacy in England and both fathers are listed on her birth certificate. Gregg himself had been born in London to a married U.S. citizen and was therefore a U.S. citizen since birth—but like Adiel Kiviti, was short of the five-year residency requirement in the U.S. That should not have been an issue, however, since he was married to a U.S. citizen—but the State Department refused Simone’s citizenship, treating her as “born out of wedlock.” The dads sued the State Department in 2019 with the help of the same organizations as the Kivitis. The U.S. District Court for the Northern District of Georgia found in their favor August.
Mize and Gregg said in a statement yesterday after the State Department said it would not appeal that decision:
We are extremely grateful that this fight is over and won. All we ever wanted was for Simone to be treated fairly. This process has reaffirmed for us that standing up for equal treatment is always right, no matter how difficult it is or long it may take.
Two more couples have sued the State Department for similar reasons. In October, the Ninth Circuit Court of Appeals ruled in favor of the Dvash-Banks family, recognizing their child’s birthright citizenship. And a case involving two moms is now before a district court in New Jersey. There’s no word yet on whether the State Department will withdraw in these cases as well, but as Omar Gonzalez-Pagan, senior attorney at Lambda Legal and one of the lawyers for the families, said yesterday, “We hope that the Trump Administration and the State Department will abide by these courts’ decisions when it encounters other families headed by same-sex couples. No family should have to go through what the Kiviti and Mize-Gregg families endured.”