Citizenship Denied to Child of Same-Sex Couple

The United States government is being sued over a refusal to grant citizenship to a newborn child. While the government usually can’t be sued when making citizenship decisions and in enforcing its immigration policy, this case presents a novel issue, because the adoptive parents of the child are gay.

Child Denied Citizenship

The parents of the child are a gay couple, married in New York. The child was born through surrogacy in England. Both parents are on the birth certificate. This should be a relatively easy case for citizenship to be granted, as both parents are citizens of the United States and immigration policy automatically provides citizenship to children born overseas to married parents who are U.S. citizens.

However, when the parents applied for citizenship for the newborn at the United States consulate in London, the application was denied. They allege the denial was because they are gay, and that the State Department has a history of denying similar applications to same sex couples.

Different Standards

Their lawsuit alleges that the State Department processed and evaluated the citizenship application under standards that apply to children born overseas to U.S. citizens out of wedlock, a different standard than what would apply when the parents are married.

For children born out of wedlock, parents must show a five year residency in the United States. One of the fathers did not meet this requirement—he was born in Britain to an American mother and moved to the U.S., making him a U.S. citizen, but he had not lived in the U.S. for the required five years, resulting in the denial of citizenship for the child. This would not have been an issue had they been treated as a married couple by the State Department’s policy.

All a married couple must show to obtain citizenship to a child born overseas is that they lived in the United States for one day.

When parents are married, couples can show a biological link to the child, which provides the child citizenship. With same sex couples, who adopt, there is no biological lineage to both parents. The policy has long been criticized for being discriminatory to same sex couples.

The lawsuit alleges constitutional violations, and says that the State Department is ignoring the “dignity and equality” of same sex couples in denying the application. Furthermore, the lawsuit alleges, the rights being violated are the child’s, who is being unfairly “punished” by the government because of who her parents are.

Other Couples Face the Same Problems

The couple now faces the very real possibility of ICE showing up at their door to take their child. The child has no other parents (the surrogate mother was a friend of one of the parents).

They are not alone. Other lawsuits are making similar allegations, and according to the organization Immigration Equality, there may be at least three dozen families in similar situations.

Make sure you have an immigration attorney during the process of applying for citizenship. Contact the Palm Beach County immigration attorneys at Devore Law Group to help you with your immigration questions.

Resources:

nytimes.com/2019/07/23/us/state-department-assisted-reproductive-citizenship.html

cnn.com/2019/07/24/us/gay-couple-daughter-citizenship-lawsuit/index.html

https://www.devorelawgroup.com/what-is-the-naturalization-test/