Children Born Abroad to Married U.S. Same-Sex Parents Are U.S. Citizens, Lambda Legal Tells Courts

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January 16, 2020
Roee and Adiel Kiviti with their two children (L) & Derek Mize and Jonathan Gregg with their daughter (R)

Lambda Legal, Immigration Equality and pro bono counsel Morgan Lewis this week urged federal district courts in Georgia and Maryland to compel the U.S. State Department to recognize the U.S. citizenship of two children born abroad to married same-sex couples who are themselves U.S. citizens. Children born abroad to married different-sex parents who are U.S. citizens are routinely recognized as U.S. citizens, but the State Department is deliberately miss-applying federal statutes to deny similar treatment to the marital children of same-sex couples.

“As U.S. citizens we never conceived that our child would face discrimination from our own government and be denied her rightful citizenship,” plaintiff Derek Mize said. “The State Department's treatment of our family has been a source of stress for us, but we are optimistic that soon a court will recognize us a family with two married parents and a precious daughter.”

“Our focus is our little girl whose rights have been infringed upon by our government,” said plaintiff Roee Kiviti. “Every parent wants to protect their child and through this case, we are trying to do just that.”

Today, lawyers representing same-sex married couple and U.S. citizens Derek Mize and Jonathan Gregg filed a motion for summary judgment asking the U.S. District Court for the Northern District of Georgia to compel the State Department to recognize the U.S. citizenship of the couple’s daughter, Simone Mize-Gregg. Just days before, last Friday, the same lawyers filed a similar motion in the U.S. District Court for the District of Maryland requesting the court to force the State Department to recognize the U.S. citizenship of Kessem Kiviti, daughter of U.S. citizens and same-sex couple Roee and Adiel Kiviti.

“The U.S. Constitution mandates that same-sex couples and their children be afforded equal dignity and the full constellation of benefits tied to marriage. Here, though the Immigration & Nationality Act recognizes as U.S. citizens the children born abroad to U.S. married couples, the Department of State refuses to recognize as U.S. citizens such children if their parents are of the same sex,” said Omar Gonzalez-Pagan, Senior Attorney for Lambda Legal. “The State Department’s refusal to recognize the citizenship of these children is not only cruel and dangerous, it is also contrary to the law and our constitutional guarantees of liberty and equality. The courts should declare these children to be U.S. citizens and set aside the State Department’s actions as unlawful.”

“The law is crystal clear that Simone and Kessem have been U.S. citizens from the moment they were born. The State Department’s refusal to recognize that simple fact is absurd. We will keep fighting for these little girls and their families for as long as it takes.” said Aaron C. Morris, Executive Director at Immigration Equality.

The State Department’s treatment comes from its conclusion that, since one of the parents is not biologically related to the child, they consider the child to be “born out wedlock” and therefore, not eligible for U.S. citizenship under the section applicable to the children of married couples. The couples’ lawyers argue that the State Department’s policy in effect treats married same-sex couples as if their marriages did not exist, unconstitutionally stripping their children born abroad of their rightful U.S. citizenship.

“The Supreme Court has been clear that married same-sex couples cannot be denied the same protections that different-sex couples receive, and that includes the right to be recognized as their children’s parents regardless of who has a biological connection to a child. The State Department cannot continue to treat LGBT families like second-class citizens and consign their children to citizenship limbo,” said Karen Loewy, Senior Counsel for Lambda Legal.

The Immigration and Nationality Act states that children of married U.S. citizens born abroad are U.S. citizens since birth so long as one of their parents has lived in the U.S. at some point, but the State Department routinely denies such recognition to same-sex couples and their children. While different-sex couples are automatically presumed to both be parents of their children, same-sex couples are subjected to invasive questioning about how they brought their child into their family, and because one parent is not a biological parent, they are treated as if they are not married, and their children are not recognized as citizens unless the biological parent can meet additional criteria.

Derek Mize and Jonathan Gregg are a same-sex couple who married in New York in 2015. They had their daughter Simone via surrogacy in England, in 2018 and both fathers are listed on her birth certificate. When they applied for recognition of her U.S. citizenship, the U.S. consulate in London rejected their application. Because only one of Simone’s fathers has a biological connection to her, the State Department is disregarding Jonathan and Derek’s marriage and is treating Simone as though she was “born out of wedlock,” a classification which requires more stringent requirements for recognition of her citizenship.

Roee and Adiel Kiviti are a same-sex couple who married in California in 2013. They had their daughter Kessem via surrogacy in Canada in February 2019. Because only Adiel has a biological connection to Kessem, the State Department is disregarding Roee and Adiel’s marriage and treating Kessem as “born out of wedlock,” meaning she must have a biological relationship to a U.S. citizen parent who has resided in the U.S. for five years. This requirement is not meant to be applied to the children of married U.S. citizens. Even though both of Kessem’s fathers are U.S. citizens, Adiel falls one year short of the residency requirement, and the State Department completely disregards Roee as her father.