Strict enforcement of outdated and incomplete immigration policies have left a sixteen-month-old baby with an expired tourist visa, while his twin brother holds a U.S. passport. This week, their parents sued the State Department to make it right.
Back in 2010, while the U.S. was still under the grips of the Defense of Marriage Act, Elad and Andrew Dvash-Banks got married in Canada, building a life for themselves in Toronto. Six years later, with the help of a surrogate, their twin boys, Aiden and Ethan, were born minutes apart.
With DOMA overturned, and their marriage legally recognized by the U.S. government at last, the family could finally act on their longtime wish to move closer to Andrew’s family in Los Angeles. Instead, as they began the process for Israeli-born Elad’s green card and the boys’ citizenship in 2016, they hit a roadblock at the U.S. consulate they did not see coming:
”The lady at the window asked, ’Do you know who these kids are genetically related to?’”
That’s when all hell broke loose. The couple told the Associated Press that the clerk started an inquiry that “they found shocking and humiliating.”
The consular official told them she had discretion to require a DNA test to show who the biological father was of each boy and without those tests neither son would get citizenship. The men knew that Andrew was Aiden's biological father and Elad was Ethan's but they had kept it a secret and hadn't planned on telling anyone.
"I started crying," Andrew said. "These are twins, how can you differentiate between them? They were born minutes apart."
After submitting the DNA test results that proved who fathered each boy, the couple received a large and small envelope from the U.S. on March 2. The big one included Aiden's passport. The other was a letter notifying Andrew that Ethan's application had been denied.
The family was able to secure Ethan a tourist visa, and relocate to L.A. as planned, but that visa expired in December.
It’s no secret that ICE enforcement is far stronger under Trump. The Dvash-Banks family wasn’t hiding before, but the lawsuit, which they filed with the assistance of LGBTQ and immigration advocacy group Immigration Equality, puts them in the spotlight, which could make them a target.
The lawsuit is multi-faceted, scrutinizing several if/then scenarios that the plaintiffs maintain would never have happened if the Dvash-Banks family were a straight binational couple, rather than gay.
But first, a quick primer on immigration codes! We’ll even reduce everyone to sperm donors along the way!
Birthright citizenship is given to children born abroad who have at least one American parent.
At least one biological parent must have been a U.S. citizen when the child was born.
Applicants must meet different standards of proof of blood relationship depending on the circumstances of their birth…
...children born in wedlock are generally presumed to be the issue of that marriage.
That means unmarried couples always have to prove paternity with DNA tests, but for married folks, the wedding certificate with both spouses’ names on a birth certificate will usually do.
The government, however, is always ready to thwart scams, and so they grant great authority and discretion to the consulate staff, with an open list of reasons to demand DNA tests of American citizens, their spouses and their children.
When she cherrypicked two of these reasons, the unnamed woman at the U.S. consulate became the point of origin for Dvash-Banks family’s fight. Wonder if she regrets it yet?
If doubt arises that the U.S. citizen "parent" is biologically related to the child, the consular officer is expected to investigate carefully.
Circumstances that might give rise to such a doubt include, but are not limited to:
(2) Naming on the birth certificate, as father and/or mother, person(s) other than the alleged biological parents; and
(5) The child was born through surrogacy or other forms of assisted reproductive technology.
e. In such cases, it is within the consular officer's discretion to request additional evidence…
When surrogacy is a part of the equation, the surrogate mother is not considered a legal parent of the child, and thus is not a factor in citizenship eligibility.
The immigration code accounts for gestational citizen mothers (they carried the baby in their body, but it wasn’t made from their egg). It also specifically accounts for not only same-sex marriages, but for scenarios where neither spouse is the genetic parent. In all cases, the child is considered a U.S. citizen.
No such protections exist for non-gestational citizen parents—of any gender—if an egg donor, surrogate and non-citizen sperm were used.
This is the intersection where Ethan exists: though he and Aiden shared a womb and a genetic mother, and both of their fathers are listed as their parents on their birth certificates, it all comes down to “whose sperm went where?”
Now that we’ve explored the surface of the law at hand, let’s get to the discrimination lawsuit: the Dvash-Banks family and their advocates maintain that it was her bias against same-sex marriage that caused the consular officer to ask a question that should never have been asked of a married couple, thus making everything else fruit from the poisoned tree.
Aaron Morris, executive director of Immigration Equality, said the State Department is applying the wrong policy for children born to married same-sex couples. The correct policy, he said, would be Act 301, which — unlike Act 309 — does not mention the necessity of a “blood relationship” between the child and the parent who is a U.S. citizen.
“When a man and a woman walk into a consulate of the U.S. with a marriage certificate and a birth certificate, no one asks them any questions about biology,” Morris said. “Any time a same-sex couple walks into a consulate, they will always be questioned by the State Department” about biology.
“They are not giving these parents the marital presumption, so at best they are treating their marriage as lesser than an opposite-sex marriage,” Morris added. “You only get to [Act] 309 if you’ve already decided the marriage doesn’t count.”
Immigration Equality also filed a similar suit on behalf of Allison Blixt and Stefania Zaccari, an American and Italian who married in London before DOMA was overturned, and gave birth to two boys together.
”The truth is, there is not such a thing as equality yet. We are not treated the same.”
See their story below: