Appellate Court Upholds Previous Ruling That Twin Son of Gay Married Couple Born Abroad is U.S. Citizen from Birth

FOR IMMEDIATE RELEASE 
October 9, 2020 

Contact: 
Camden Schinnerer, Immigration Equality 
cschinnerer@immigrationequality.org | (917) 654-9194 

October 9, 2020 (Pasadena, CA) – Today, a panel of the U.S. Court of Appeals for the Ninth Circuit unanimously upheld a lower court ruling recognizing the citizenship from birth of Ethan Dvash-Banks, a twin boy born abroad by surrogacy to Andrew and Elad Dvash-Banks, a married gay couple. Both courts found that the State Department had wrongly interpreted the Immigration and Nationality Act (INA). Further, the Ninth Circuit noted that the State Department’s interpretation of the INA was foreclosed by settled Circuit case law, which reiterated that the section of the law applying to married couples, “does not require a biological relationship between a child and the citizen parent through whom citizenship is claimed.” The decision is the latest in a series of victories for LGBTQ families represented by Immigration Equality.

“After years of the federal government denying Andrew and Elad’s rights as a married couple, the Ninth Circuit has unequivocally ruled in the family’s favor,” said Aaron C. Morris, Executive Director of Immigration Equality and co-counsel for the family. “No longer will these parents have to worry that their twin sons will be treated as if they were born out of wedlock simply because they have two fathers. This decision demonstrates yet again that it is far past time for the State Department to change its discriminatory policy.”

Andrew and Elad Dvash-Banks are a married couple who had twin sons during their marriage through surrogacy in Canada. Andrew is a U.S. citizen and Elad is an Israeli citizen. One of the twins was conceived from Andrew’s genetic material, and the other was conceived from Elad’s genetic material. Andrew and Elad subsequently sought recognition of the twins’ U.S. citizenship. The State Department, applying an internal policy, treated their children as though they were born out of wedlock. Pursuant to that policy, the State Department recognized Aiden as a U.S. citizen, but not Ethan because he was not biologically related to his U.S.-citizen father. With Immigration Equality’s assistance, the family filed a lawsuit in January 2018 and Ethan was issued a U.S. passport in 2019 after a federal court ruled in his favor, a decision the State Department appealed.

“We are overjoyed and gratified by today’s decision that our twin sons should be treated the same as the children of all other marriages, and we hope this decision will help other LGBTQ families secure the equal rights they deserve.” said Andrew and Elad Dvash-Banks.

While a victory for the Dvash-Banks family, today’s decision does not extend to the unknown number of families affected by the State Department’s policy. Every federal court who has heard this issue has now found the State Department’s policy to be contrary to the intent of Congress and U.S. law. Immigration Equality currently represents three other same-sex married couples fighting for their children’s rights to be recognized as U.S. citizens.

Immigration Equality co-counseled with a team of lawyers from Sullivan & Cromwell LLP, working on this matter on a pro bono basis. 

Read the decision in Dvash-Banks v. Pompeo here.

Read more about the Dvash-Banks family here.

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Immigration Equality is the nation’s leading LGBTQ immigrant rights organization. We represent and advocate for people from around the world fleeing violence, abuse, and persecution because of their sexual orientation, gender identity, or HIV status.

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