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Same-Sex Couple's Citizenship Policy Suit Moves Ahead

By Suzanne Monyak

Law360 (May 16, 2019, 4:16 PM EDT) -- A D.C. federal judge paved the way Wednesday for a same-sex couple's lawsuit challenging a U.S. Department of State policy requiring a biological relationship between foreign-born children and their American parent to see the inside of a courtroom.

In a minute order without an opinion, U.S. District Judge Emmet G. Sullivan rejected the federal government's request to have the couple's lawsuit thrown out, clearing an early hurdle for U.S. citizen Allison Dawn Blixt to have her son — who was carried by her Italian wife, Stefania Zaccari, through the use of an anonymous sperm donor and born abroad — declared an American citizen at birth.

Blixt and Zaccari were already married at the time of their son Lucas' birth in London, and they are both his legal parents. But the State Department applied a provision of the Immigration and Nationality Act governing citizenship for children born to a binational couple abroad "out of wedlock," which explicitly requires the child to be related biologically to the American parent to be born a U.S. citizen.

As a result, since Lucas is not biologically related to Blixt, the State Department found he did not qualify for U.S. citizenship at birth. The State Department did recognize the couple's other child as an American citizen at birth because he was carried by Blixt.

"The judge's decision to hear this case is an important step forward for the Zaccari-Blixt family and all families who are currently being denied equal treatment under the law," Aaron C. Morris of Immigration Equality, who is representing the family, said in a statement. "The government should change its policy, and we will keep fighting until they do."

The court's decision arrives in the wake of a California federal judge's ruling in favor of another same-sex couple in a similar suit, brought by the same counsel on behalf of a married gay couple, one American and one Israeli. The couple had twins in Canada after two eggs from the same donor — one fertilized with the American's sperm and one with the Israeli's sperm — were implanted in a gestational surrogate. Similarly, the State Department granted birthright citizenship to the son related to his American father but refused to do so for the boy related to his Israeli dad.    

In a decision that's currently on appeal at the Ninth Circuit, the California court ruled that the child did not need to show he is related to his American parent to be a U.S. citizen at birth if the couple is married, finding that the State Department's interpretation of the federal immigration statute's relevant provision as requiring a blood relation was "strained."

But the judge stopped short of issuing a permanent injunction banning the State Department's interpretation of the INA's citizenship provisions for all families in similar situations, holding that such an injunction is "well beyond" what that family would need for complete relief for their son.

The Zaccari-Blixt family filed suit in January 2018, arguing that the State Department's refusal to recognize the couple's marriage when applying the INA provision for children born abroad "out of wedlock," known as Section 309, was unconstitutional and violates administrative law.

The government moved to dismiss the case in September, contending that there is no relief available because even if the State Department had applied the provision for married couples, known as Section 301, where one parent is a U.S. citizen who meets a residency requirement, a blood relationship would still be required under guidance in the department's foreign affairs manual.

The government explained that the State Department interprets the phrase "born … of parents," included in the provision for children born to married couples, or "in wedlock," to require a blood relation to both married parents, where "in wedlock" means "birth during the marriage of the biological parents to each other."

A State Department official declined to comment on pending litigation, but said that the department's citizenship guidance for children born through assisted reproductive technology is "longstanding" and has "been unchanged for several years," aside from "non-substantive updates."

According to the federal court docket, the Zaccari-Blixt family's case will now move into discovery and mediation.

The family is represented by Elizabeth A. Cassady, Theodore Edelman, Jessica Klein, Philip L. Graham Jr. and Lauren M. Goldsmith of Sullivan & Cromwell LLP and Aaron C. Morris of Immigration Equality.

James Taylor