Trump Administration Appeals Court Decision Recognizing Citizenship of Same-Sex Couple’s Child

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August 17, 2020

On Friday, the U.S. State Department appealed the June 17th decision of a Maryland federal district court that recognized the birthright citizenship of Kessem Kiviti, the child of married U.S. citizens, Roee and Adiel Kiviti. By appealing the decision to the U.S. Court of Appeals for the Fourth Circuit, the government continues to refuse to recognize the validity of Roee and Adiel’s marriage and continues to defend its discriminatory policy, which conditions the recognition of birthright citizenship on a biological link to a U.S. citizen parent.  

“It’s sad that we have to continue this legal battle,” said Roee Kiviti“But we are undeterred. We are doing this not just for our daughter and our family, but so that other families won’t have to.” Adiel Kiviti added, “Our daughter likes to play with legos, to dance until she falls, and to tickle her brother. That’s what we’re going to focus on.”  

The lawsuit was brought by Immigration Equality, Lambda Legal, and pro bono counsel Morgan Lewis on behalf of the Roee and Adiel Kiviti, a married gay couple, and their now 18-month-old daughter, Kessem. The Trump Administration refused to recognize Kessem as a U.S. citizen since birth, even though both of her parents are U.S. citizens. Kessem was born abroad via gestational surrogacy, and while federal law dictates that a child born to two U.S. citizens automatically becomes a citizen, the State Department has refused to recognize Kessem as a citizen because she is not biologically related to both of her fathers.  

“A federal court has already found the Department of State’s policy to be contrary to the law and to raise grave constitutional concerns. It is unconscionable, though not surprising, for this administration to further appeal a policy so clearly at odds with the law and that is harmful to LGBTQ families. We will continue to fight for the Kivitis’ right to be recognized as a family, and Kessem’s right to be recognized as a US citizen since birth,” said Omar Gonzalez-Pagan, Senior Staff Attorney and Health Care Strategist at Lambda Legal. 

“Once again, the State Department is refusing to recognize Roee and Adiel’s rights as a married couple,” said Aaron C. Morris, Executive Director of Immigration Equality and co-counsel for the couple. “The government’s attempts to strip Kessem of citizenship are unconstitutional, discriminatory, and morally reprehensible.” 

Roee and Adiel Kiviti married in California in 2013. They had their daughter Kessem via gestational surrogacy in Canada in February 2019. Because only Adiel has a biological connection to Kessem, the State Department disregarded Roee and Adiel’s marriage and treated Kessem as “born out of wedlock,” meaning that they required her to have a biological relationship to a U.S. citizen parent who has resided in the U.S. for five years to automatically obtain her U.S. citizenship. This requirement is not meant to apply to the children of married U.S. citizens. 

The Immigration and Nationality Act states that children of married U.S. citizens born abroad are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point, but the State Department routinely denies that right to same-sex couples and their marital 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. 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. 

Today’s appeal follows a hearing held two weeks ago before the U.S. District Court for the Northern District of Georgia in a similar lawsuit also filed by Immigration Equality, Lambda Legal, and pro bono counsel on behalf of two-year-old Simone Mize-Gregg and her parents, married U.S. citizens Derek Mize and Jonathan Gregg. As with Kessem Kiviti, the U.S. State Department refuses to recognize the U.S. citizenship since birth of Simone Mize-Gregg notwithstanding the dictates of federal law, again because she was born abroad and is not related biologically to both parents. 

The lawsuit Kiviti v. Pompeo was filed last July in the U.S. District Court for the District of Maryland. 

Handling the case are Omar Gonzalez-Pagan, Karen Loewy, and Tara Borelli for Lambda Legal; Aaron C. Morris for Immigration Equality; and lawyers from the law firm Morgan, Lewis & Bockius LLP.