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Case Name Dvash-Banks v. Tillerson [Dvash-Banks v. Pompeo] IM-CA-0113
Docket / Court 2:18-cv-00523 ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Take Care
Case Summary
On January 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 ... read more >
On January 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 January 24, 2018, the case was assigned to Judge John F. Walter.

Status reports filed in May and July 2018 stated that the parties were continuing to try to resolve the matter without resorting to litigation. On August 21, 2018, Judge Walter referred the parties to private mediation.

On November 27, 2018, Judge Walter issued an order for plaintiffs to show cause as to why the case should not be dismissed with respect to the child plaintiff, as a guardian ad litem had not yet been appointed as required under Federal Rule of Civil Procedure 17(c). The order called for the plaintiffs to file an ex parte application to appoint a guardian ad litem by December 3, 2018, which they did. On December 4, 2018, Judge Walter issued an order granting the application.

In early January, the parties engaged in a flurry of motions and amended complaints. On January 4, 2019, the plaintiffs filed an unopposed motion amending their complaint to remove the Equal Protection claim. They retained the other three causes of action. Three days later, they filed a partial motion for summary judgment on the Due Process claim and the 8 U.S.C. § 1503 claim for a declaration that the child plaintiff is a U.S. citizen. The same day, DOS also moved for summary judgment on the Due Process and the APA claims. A week later, on January 14, 2019, the plaintiffs filed an amended complaint.

On February 21, 2019, Judge Walter granted each party partial summary judgment. 2019 WL 911799. He ruled that DOS was entitled to summary judgment on the APA claim, holding that the plaintiffs had an adequate alternative remedy to the APA claim in their § 1503 claim. Judge Walter ruled that the plaintiffs were entitled to summary judgment on the § 1503 claim, finding that there was no dispute over the material facts and that Ninth Circuit authority did not condition citizenship under § 301 of the INA upon a biological connection to both of the child’s married parents. Because the plaintiffs prevailed on the § 1503 claim, the parties agreed, and Judge Walter ruled, that the plaintiffs’ claim for declaratory judgment on the Due Process claim was moot.

On March 7, 2019, Judge Walter ruled that the child plaintiff was a citizen of the United States who acquired his citizenship at birth under § 301 of the INA; ordered DOS to issue the child plaintiff a U.S. passport within 45 days of the judgment; ordered DOS to issue the child plaintiff a Consular Report of Birth Abroad if the parents decided to apply for one; prohibiting DOS from charging the family any additional fines (since their first applications were improperly denied); entering judgment for DOS on the APA claim; and dismissing the plaintiffs' Due Process claim as moot. Judge Walter retained jurisdiction to adjudicate on applications for attorneys' fees and costs.

On March 20, 2019, the plaintiffs filed a motion pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) for an award of attorneys' fees. Because the defendants planned to appeal the district court's decision, the parties agreed to defer the proceedings related to the motion until a final judgment was reached.

On May 6, 2019, the defendant appealed the decision to the Ninth Circuit Court of Appeals, docket number 19−55517. The parties issued a joint status report stating they had agreed upon an amount to be paid in attorney fees on May 9, 2019, but the court ordered deferment in light of the appeal on May 13, 2019.

The case is ongoing pending decision on the appeal.

Ava Morgenstern - 01/24/2018
Virginia Weeks - 07/17/2018
Alexandra Gilewicz - 03/20/2019
Justin Hill - 10/02/2019


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Issues and Causes of Action
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Issues
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 No
Filed Pro Se No
Prevailing Party Mixed
Public Int. Lawyer No
Nature of Relief Declaratory Judgment
Source of Relief Litigation
Filing Year 2018
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  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: 05/13/2019
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]
Ex Parte Notice of Motion and Unopposed Motion Under FRCP 15(a) for Leave to Remove Plaintiffs' Equal Protection Claim Via Amendment of the Complaint [ECF# 79]
IM-CA-0113-0002.pdf | Detail
Date: 01/04/2019
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Declaratory and Injunctive Relief [ECF# 94]
IM-CA-0113-0003.pdf | Detail
Date: 01/14/2019
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment Order Granting in Part and Denying in Part Defendant's Motion for Partial Summary Judgment [ECF# 123] (2019 WL 911799) (C.D. Cal.)
IM-CA-0113-0004.pdf | WESTLAW | Detail
Date: 02/21/2019
Source: PACER [Public Access to Court Electronic Records]
Judgment [ECF# 125] (C.D. Cal.)
IM-CA-0113-0005.pdf | Detail
Date: 03/06/2019
Source: PACER [Public Access to Court Electronic Records]
Order to Defer Consideration of Plaintiffs' Application for Attorneys' Fees and Costs [ECF# 138] (C.D. Cal.)
IM-CA-0113-0006.pdf | Detail
Date: 05/13/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Chooljian, Jacqueline (C.D. Cal.) [Magistrate] show/hide docs
IM-CA-0113-9000
Walter, John F. (C.D. Cal.) show/hide docs
IM-CA-0113-0004 | IM-CA-0113-0005 | IM-CA-0113-0006 | IM-CA-0113-9000
Plaintiff's Lawyers Blair, Scott E (New York) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-9000
Edelman, Theodore (New York) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-0002 | IM-CA-0113-0003 | IM-CA-0113-0005 | IM-CA-0113-0006 | IM-CA-0113-9000
Goldsmith, Lauren (New York) show/hide docs
IM-CA-0113-0006 | IM-CA-0113-9000
Jennings, Andrew K. (New York) show/hide docs
IM-CA-0113-9000
Klein, Jessica M. (New York) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-0005 | IM-CA-0113-0006 | IM-CA-0113-9000
Lawson-Remer, Alexa M. (California) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-0002 | IM-CA-0113-0003 | IM-CA-0113-0005 | IM-CA-0113-0006 | IM-CA-0113-9000
Morris, Aaron (New York) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-0002 | IM-CA-0113-0003 | IM-CA-0113-0005 | IM-CA-0113-0006 | IM-CA-0113-9000
Moss, Alexandra K. (New York) show/hide docs
IM-CA-0113-0001 | IM-CA-0113-9000
Raybuck, Rebekah Tilander (California) show/hide docs
IM-CA-0113-0006 | IM-CA-0113-9000
Defendant's Lawyers Andrapalliyal, Vinita (District of Columbia) show/hide docs
IM-CA-0113-0006 | IM-CA-0113-9000
Coppolino, Anthony J. (District of Columbia) show/hide docs
IM-CA-0113-0006
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-CA-0113-0006
Marcus, Lisa Zeidner (Pennsylvania) show/hide docs
IM-CA-0113-0006 | IM-CA-0113-9000

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