University of Michigan Law School
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Case Name Dvash-Banks v. Tillerson [later Pompeo] IM-CA-0113
Docket / Court 2:18-cv-00523 ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Case Summary
On Jan. 22, 2018, a father and his minor son filed this lawsuit in the District Court for the Central District of California. The plaintiffs sued the U.S. Department of State (DOS) for not granting U.S. citizenship to the child plaintiff, because he was born outside of the U.S. to a same-sex dual- ... read more >
On Jan. 22, 2018, a father and his minor son filed this lawsuit in the District Court for the Central District of California. The plaintiffs sued the U.S. Department of State (DOS) for not granting U.S. citizenship to the child plaintiff, because he was born outside of the U.S. to a same-sex dual-nationality couple. Represented by the nonprofit organization Immigration Equality and the private law firm Sullivan & Cromwell (who also represented the plaintiffs in a similar lawsuit filed the same day), the plaintiffs sought declaratory and injunctive relief granting birthright U.S. citizenship to the child.

The adult plaintiff, a natural-born U.S. citizen, married his Israeli-citizen husband in 2010 in Canada. The couple continued living in Canada, because the U.S. citizen held joint Canadian citizenship and could sponsor his husband for legal residence there, which he could not do in the United States at the time. Some years later, each man contributed his sperm to conceive two children, born through a surrogate in Canada in 2016. The children's birth certificates listed only the names of the two fathers as parents.

However, when the fathers applied for U.S. citizenship for the children, DOS only recognized the citizenship of the son born of the sperm of the U.S. citizen, under the Immigration and Nationality Act (INA) § 301(g) (8 U.S.C. § 1401(g)) (governing derivation of U.S. citizenship for a child born abroad to a U.S. citizen). DOS did not recognize U.S. citizenship of the child plaintiff, born of the sperm of the Israeli citizen, because he lacked a biological or adoptive relationship to the U.S. citizen adult plaintiff. According to plaintiffs, DOS erroneously considered this child born "out of wedlock" and not entitled to U.S. citizenship at birth under INA § 309 (8 U.S.C. § 1409). Thus the child plaintiff could only travel to the U.S. with the rest of his family on a temporary tourist visa.

The plaintiffs asserted that DOS had a policy of discrimination against the children of same-sex couples. Any child born to a U.S. citizen woman married to a man was born "in wedlock." But a child of a U.S. citizen who was not the biological or adoptive parent, but instead conceived through reproductive technology, could be considered born "out of wedlock." The plaintiffs argued that this policy, which largely burdened same-sex couples, was unsupported by the INA's text and intent to keep families together, as well as case law supporting the rights of same-sex married couples.

The plaintiffs alleged that DOS's policy and its application to the plaintiffs violated the Due Process and Equal Protection Clauses of the Fifth Amendment to the U.S. Constitution, as well as the Administrative Procedures Act (APA) as arbitrary, capricious, and contrary to the INA.

On Jan. 24, 2018, the case was assigned to Judge John F. Walter.

Status reports filed in in May and July 2018 stated that the parties were continuing to try to resolve the matter without resorting to litigation.

This case is ongoing.

Ava Morgenstern - 01/24/2018
Virginia Weeks - 07/17/2018


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Due Process
Equal Protection
Discrimination-basis
Family discrimination
Sexual orientatation
General
Disparate Treatment
Family reunification
Gay/lesbian/transgender
Government Services (specify)
Juveniles
Marriage
Youth / Adult separation
Immigration/Border
Admission - criteria
Admission - procedure
Constitutional rights
Family
Status/Classification
U.S. citizenship - acquiring
Visas - criteria
Visas - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Department of State
Plaintiff Description U.S. citizen father and son, the latter born abroad and denied U.S. citizenship
Class action status sought No
Class action status granted Moot
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2018
Case Ongoing Yes
Additional Resources
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  Same-sex couples file suits claiming their children were unconstitutionally denied citizenship
www.abajournal.com
Date: Jan. 24, 2018
By: Alvarez, Gerardo (American Bar Association)
[ Detail ] [ External Link ]

  Meet the Dvash-Banks Family
www.immigrationequality.org
Date: Jan. 24, 2018
By: Immigration Equality
[ Detail ] [ External Link ]

Docket(s)
2:18-cv-523 (C.D. Cal.)
IM-CA-0113-9000.pdf | Detail
Date: 07/16/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory Injunctive Relief [ECF# 1]
IM-CA-0113-0001.pdf | Detail
Date: 01/22/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Chooljian, Jacqueline (C.D. Cal.) [Magistrate]
IM-CA-0113-9000
Plaintiff's Lawyers Blair, Scott E (New York)
IM-CA-0113-0001 | IM-CA-0113-9000
Edelman, Theodore (New York)
IM-CA-0113-0001 | IM-CA-0113-9000
Jennings, Andrew H. (New York)
IM-CA-0113-9000
Klein, Jessica M. (New York)
IM-CA-0113-0001 | IM-CA-0113-9000
Lawson-Remer, Alexa M. (California)
IM-CA-0113-0001 | IM-CA-0113-9000
Morris, Aaron (New York)
IM-CA-0113-0001 | IM-CA-0113-9000
Moss, Alexandra K. (New York)
IM-CA-0113-0001 | IM-CA-0113-9000
Defendant's Lawyers Andrapalliyal, Vinita (District of Columbia)
IM-CA-0113-9000

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