A Los Angeles bi-national gay couple are suing the United States State Department for denying one of their young twin sons citizenship.
They are one of two bi-national couples who filed two separate cases against the department claiming discrimination against same-sex bi-national families January 22.
The two gay and lesbian couples, Andrew and Elad Dvash-Banks and Allison Blixt and Stephania Zaccari, claim the department isn’t treating same-sex couples equally as heterosexual bi-national couples with children.
By not recognizing their marriages and children’s U.S. citizenship, the department is violating the U.S. Constitution and Congress’ intent behind the Immigration and Naturalization Service’s policy regarding children of bi-national couples to “make it easier—not harder—for families of citizens and non-citizens to stay together,” according to the claims filed by the families’ attorneys at Immigration Equality and Sullivan and Cromwell, LLP.
“The State Department is refusing to acknowledge the citizenship of children whose parents are same-sex married couples. This policy is not only illegal, it is unconstitutional,” said Aaron C. Morris, executive director of Immigration Equality, in a news release Monday. “This action by the State Department disenfranchises children born to bi-national same-sex parents and places an undue burden on their families.”
Ethan Dvash-Banks, who is 16-months old, was denied U.S. citizenship while his twin brother, Aiden Dvash-Banks, was granted citizenship.
Aiden was given U.S. citizenship at birth because he was genetically connected to his American father Andrew Dvash-Banks, a 37-year old travel manager who is a Los Angeles native.
Ethan has Andrew’s husband Elad Dvash-Banks’, 32-year old Israeli citizen who is a development manager for a Jewish organization in Los Angeles, DNA.
The family moved to California last year to be close to Andrew’s large family as they planned after getting together and being forced to live in Canada due to the Defense of Marriage Act. The law was struck down by the Supreme Court in 2015.
Elad is currently residing in California on a family green card sponsored by Andrew.
Ethan entered the U.S. through a tourist visa that is now expired.
The State Department’s decision to not grant Ethan U.S. citizenship means that the nearly two-year old child could be deported to Canada, where he was born, or to relatives in Israel.
“Ethan doesn’t have a legal status right now. We have to find a way to work around it until it’s resolved,” said Elad.
Andrew and Elad are fighting for their son and their family to stay in California.
“I have a responsibility as a parent to protect my child, to defend my child, stand up for my child and we’ve been wronged,” Andrew told the Bay Area Reporter during a phone interview with the family Monday.
“We are trying to get what’s rightfully his,” Elad added.
The situation is causing anxiety and sadness throughout their family.
“My mom is devastated, [she] is beside herself that this is happening to her grandson and that her twin grandsons are being treated differently,” said Andrew.
The family can’t travel outside of the country until Ethan’s U.S. citizenship is resolved, they said. It’s a pressing concern for Andrew and Elad, whose large family in Israel includes the children’s elderly great-grandparents. They only saw the twins as infants in Israel before the Dvash-Banks family moved back to the states. Elad’s parents visited their grandchildren after they were born in Canada, he said.
The couple cancelled their family’s trip in December last year due to Ethan’s citizenship status.
“Our family is being torn apart,” said Elad, who fears that if they do travel outside of the U.S. that Ethan will not be allowed back into the country. “We don’t know when it’s going to be resolved.”
Indignity and absurdity
Early in the both couples’ relationships, they realized that due to DOMA, which was struck down by the U.S. Supreme Court in 2015, the American partner couldn’t sponsor their foreign partner and live in the states.
Andrew met Elad while he was studying in Israel.
The two women met while Zaccari was on vacation in New York.
Both couples decided to temporarily begin their lives together in host countries that would accept them. For Andrew and Elad that was Canada. For Blixt, who is from New York, and Zaccari, who is from Rome, it was England.
Both couples planned to eventually move their families back to the U.S., they told reporters during a press conference Monday.
Blixt and Zaccari still live in London with their two sons, Lucas, who wasn’t granted U.S. citizenship due to Zaccari giving birth to him, and his younger brother Massi, a U.S. citizen at birth due to being carried by Blixt.
The families realized that they weren’t being treated equally when they applied for their sons’ citizenship at the U.S. consulates in Toronto and London.
The couples described their humiliating experiences at the U.S. consulates in Toronto and London when they were applying for their children’s citizenships.
“The questions that we were asked were extremely personal and invasive,” Elad told the B.A.R.
“Both consulate officials and customers [were] staring at us,” said Andrew. “[They] we’re intrigued to get the answers to these questions.”
“When we were told that we were going to be required to do a DNA test to prove my genetic connection, I said, ‘We’ll refuse.’ They said, ‘Well then, we will deny both your children citizenship,’” Andrew said the official told him.
Elad challenged the consulate officer, but he was told it was “her discretion whether to ask or not to ask,” he said.
“The exception is when a consular officer sees a heterosexual couple and they have both their names on their kid’s birth certificates, no one would ever ask them if they are genetically yours,” and grant them U.S. citizenship, he said.
The couple never planned to reveal their children’s genetic connections to them, they said. Ultimately, the couple was forced to submit a DNA test to the consulate.
Blixt and Zaccari echoed the men’s experience. They were told in writing that Lucas was being classified as being born “out of wedlock” and denied citizenship. Massi was given U.S. citizenship at birth. It didn’t matter that the couple upgraded their Civil Union they obtained in 2009 in Britain to marriage in 2015, a year after same-sex marriage was legalized in the country.
“Were told that Lucas would not get citizenship, even though both Allison and I were listed as partners on the birth certificate,” Zaccari said during the press conference. “The reason why is because I am an Italian citizen. I’m not American. The fact that Allison is American, that didn’t count for recognition of Luca’s nationality citizenship.”
When Blixt gave birth to the couple’s second child, Massi, last year, they attempted again to obtain U.S. citizenship for Lucas when they went to get Massi’s citizenship.
Massi was declared a U.S. citizen. Lucas was denied citizenship for the second time. It didn’t matter that both parents’ names were on both children’s birth certificates.
“They are not treated the same. That is really painful actually and really horrible to have to explain that to Lucas when he gets a bit older,” said Blixt.
Both families’ children were born while the parents were legally married in Canada and the Britain.
“We just feel that we were treated differently. We feel that we are discriminated against because we’re a same-sex couple,” said Andrew.
Elad agreed, “One of our kids was denied the right his twin brother got,” he said, stating it’s a “wrong doing that the government is doing to us.”
Morris agreed, noting that using the “unwed” requirement is proof that same-sex married couples are being discriminated against.
“To use that requirement in these cases is both implicit and explicit evidence that the U.S. government is treating same-sex couples as if they are not married and treating parents as if they are not the parents of their children,” said Morris.
Challenging the State Department
The couples want to change the centuries old requirement to have a biological claim for citizenship. Since 1790, 14-years after the founding of the nation, citizenship of a child has been established by blood or genetic relationship to an American citizen, according to the State Department’s “Foreign Affairs Manual.” The manual has been updated to include policies that cover reproductive technologies abroad. The burden of proof is upon the individual claiming U.S. citizenship.
A birth certificate and the parent’s marriage certificate as supporting evidence to claim citizenship, isn’t enough for the department, unlike it is for Congress under INA.
The INA hasn’t been revised since 1952 and officials continue to refer to terms “parent,” “person,” “mother,” “father,” and “out of wedlock,” in sections 301 and 309 to define children born in wedlock and out of wedlock.
Kevin Brosnahan, press officer at the State Department, wouldn’t respond to questions about the department’s recognition of same-sex marriage and parentage abroad or classification of children’s birth.
“We do not comment on pending litigation,” he told the B.A.R.
Morris disagrees with the State Department, he believes that the Supreme Court trumps the department’s citizenship policies when it comes to children of American same-sex parents born abroad.
“The Supreme Court has made clear that the Constitution requires that same-sex marriages receive the same legal effects and respect as opposite-sex marriages,” he declare in the complaint.
The two families are fighting for themselves and other bi-national couples who are starting to come forward and challenge the government.
“We maybe some of the first, but we’re not going to be the last,” said Andrew about why they are challenging the State Department. “It’s not just for my family and my son. It’s about doing what’s right, it’s for my community and for everybody who could potentially be affected by this.”
Watch the Dvash-Banks family tell their story:
Watch Blixt and Zaccari’s tell their story:
Got international LGBT news tips? Call or send them to Heather Cassell at Skype: heather.cassell or firstname.lastname@example.org.