Dvash-Banks vs. Pompeo

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW

CFL – Atty. Ismael Sarangaya
E.J. D.-B., a Minor, Elad Dvash-Banks as the guardian ad litem, and Andrew Mason Dvash-Banks vs. U.S.
Department of State and Michael Pompeo
Case No. 19-55517, 19 December 2019
FACTS:
Plaintiff Andrew Mason Dvash-Banks is a U.S. citizen who has resided in the United States for most of his life. In
2008, while studying in Israel, Andrew met and began a relationship with Elad Dvash-Banks, a male Israeli
citizen. Elad and Andrew moved to Canada in 2010 and married there in August 2010.
Several years later, with the goal of having children together, Elad and Andrew entered into a contract with a
gestational surrogate. The contract provided that Elad and Andrew would “be recognized,” “immediately upon
birth,” “as the parents” of any child born through the surrogacy arrangement. Elad and Andrew provided sperm
that was combined with eggs from an anonymous donor to create embryos, and two of those embryos—one
created with Andrew’s sperm, another with Elad’s—were successfully transferred to the surrogate. In
September 2016, the surrogate gave birth to two boys, E.J. and A.J. Later that month, consistent with the
surrogacy contract, a Canadian court declared Elad and Andrew to be the parents of both children (court
order). Birth registrations documenting that relationship were issued several weeks later.
In January 2017, Elad and Andrew visited the U.S. Consulate in Toronto to apply for Consular Reports of Birth
Abroad and U.S. passports for the children. The consular official who reviewed the applications accepted Elad
and Andrew’s marriage license as proof of a valid marriage and accepted A.J.’s and E.J.’s birth registrations as
proof that Elad and Andrew were their legal parents. After consulting with her colleagues, however, the officer
informed Elad and Andrew that the children would qualify for U.S. citizenship at birth only if they were
biologically related to Andrew, the U.S. citizen parent. Elad and Andrew then submitted DNA test results
showing that A.J. is Andrew’s biological child and E.J. is not.
Because A.J. is biologically related to Andrew, the consulate determined that A.J. is a citizen. The consulate
denied E.J.’s applications, however, on the ground that Andrew is “not his biological father.” The denial letter
explained that the INA “requires, among other things, a blood relationship between a child and the U.S. citizen
parent in order for the parent to transmit U.S. citizenship.”
ISSUE:
Whether or not 8 U.S.C. § 1401(g) requires that the citizen parent be biologically related to the child.
8 U.S.C. § 1401(g) confers confers jus sanguinis citizenship at birth on “a person born outside the geographical
limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a
citizen of the United States” meeting certain requirements.
RULING:
NO. The government’s interpretation—that § 1401(g) requires a biological relationship between the child and
both parents—appears nowhere in the statute. It requires the imaginary interposition of the word “biological”
before the statutory term “parents” and resort to the government’s slapdash law office history of jus sanguinis,
which it misconstrues in an excessively literal manner. The proper outcome based on the plain language of §
1401(g) is clear: for the child of married parents at birth like E.J., derivative citizenship passes directly through
the U.S. citizen parent if that parent meets the statute’s residency requirement. No biological relationship to
that legal parent is required.
Under a proper interpretation of § 1401, then, both twins are citizens under that provision even though only
A.J. is biologically related to his American father. However, the State Department’s Foreign Affairs Manual
(FAM), which here is wholly unmoored from the statutes on which it purports to rely, erroneously requires that
children who qualify for citizenship-at-birth under § 1401 are born “during the marriage of the biological
parents to each other.”
Because the government interprets § 1401(g) to require a child to have a biological relationship to both marital
parents—thus disqualifying both twins from citizenship under that provision—when the State Department
recognized A.J. as a citizen, it did so under § 1409 (due to, among other reasons, his genetic relationship to
Andrew). It thus necessarily treated Andrew and Elad in the Court’s words as “unmarried parents,” and in the
words of the statutory text, “out of wedlock,” 8 U.S.C. § 1409(a).
As we show below, the government’s convoluted interpretation of the INA deprives virtually all married same
sex couples of a crucial benefit of marriage, one that directly implicates the family’s integrity, by preventing U.S.
citizen parents from passing on derivative citizenship under § 1401(g). Because the statute may be interpreted
consistent with its text in a manner that does not raise any of these constitutional concerns, it must be
interpreted in such a manner.
In sum, the Court declares that Ethan Jacob Dvash-Banks is a national and citizen of the United States who
acquired U.S. citizenship at birth by operation of Section 301(g) of the Immigration and Nationality Act,
DISPOSITION:
For the reasons above, this Court should affirm the judgment of the district court.

Dvash-Banks vs. Pompeo

Uploaded by

Copyright:

Available Formats

Dvash-Banks vs. Pompeo

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dvash-Banks vs. Pompeo

Uploaded by

Copyright:

Available Formats

UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

You might also like