467 F.Supp.3d 293
D. Maryland2020Background
- Roee and Adiel Kiviti are married U.S. citizens; they had a child, K.R.K., born in Canada via gestational surrogacy using an anonymous egg donor and genetic material from Adiel. A Canadian court and birth certificate list the Kivitis as K.R.K.’s legal parents.
- The State Department denied K.R.K.’s passport application after treating her as born "out of wedlock" under 8 U.S.C. § 1409 and applying the residency requirements of § 1401(g), because only one of the married parents was a genetic parent.
- The State Department’s Foreign Affairs Manual (FAM) requires a biological relationship to any citizen-parent through whom citizenship is claimed and applies a blood-relationship rule to determine whether a child born to married parents is considered born in wedlock.
- Plaintiffs sued under 8 U.S.C. § 1503 (declaratory judgment of citizenship), asserted Fifth Amendment substantive due process and equal protection claims, and an APA claim challenging the FAM as arbitrary and contrary to law.
- The Court held that § 1401(c)’s phrase "born . . . of parents" does not require both married parents to be biologically related; it granted plaintiffs summary judgment declaring K.R.K. a U.S. citizen at birth and dismissed the APA claim (finding § 1503 an adequate remedy). The Court did not decide the constitutional claims on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8 U.S.C. § 1401(c) requires both married parents to be biologically related to a child born abroad | "Parents" includes legal/ marital parentage; §1401(c) applies to children born to married U.S. citizen parents even if one spouse lacks a biological tie | FAM/DoS: "born . . . of parents" requires biological relationship to each parent; thus §1401(c) inapplicable where a spouse is not genetic parent | Court: §1401(c) does not require biological relationship to both parents; K.R.K. is a U.S. citizen at birth under §1401(c) |
| Whether the FAM’s longtime interpretation merits Skidmore deference | Plaintiffs: FAM interpretation is wrong and unsupported by statutory text | DoS: longstanding agency practice merits deference | Court: no Skidmore deference because the statutory text is clear and the FAM is unpersuasive |
| Constitutional claims (substantive due process and equal protection) challenging the FAM as discriminatory against same-sex couples | Kivitis: policy infringes marital and family rights and treats same-sex marriages worse, raising serious constitutional doubts | DoS: policy is facially neutral and applied evenhandedly; no fundamental right implicated | Court: did not decide on merits; noted constitutional-avoidance supports plaintiffs but statutory resolution made it unnecessary |
| APA claim challenging policy as arbitrary and capricious | Plaintiffs: APA permits vacatur of the FAM and broader injunctive relief beyond §1503 relief | DoS: §1503 provides an adequate, alternative remedy; APA review therefore barred | Court: dismissed APA claim because §1503 offers an adequate alternative remedy |
Key Cases Cited
- United States v. Wong Kim Ark, 169 U.S. 649 (establishes birthright citizenship principle)
- Sessions v. Morales-Santana, 137 S. Ct. 1678 (interprets residency requirements for children born abroad)
- Scales v. INS, 232 F.3d 1159 (9th Cir.) (held §1401 does not require biological parentage for married parents)
- Jaen v. Sessions, 899 F.3d 182 (2d Cir.) (adopted common-law presumption of parentage for §1401)
- Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir.) (applied Scales in married-parent context)
- Obergefell v. Hodges, 135 S. Ct. 2584 (same-sex marriage and benefits tied to marriage)
- Tuan Anh Nguyen v. INS, 533 U.S. 53 (upheld biological-relationship requirement in statute addressing unmarried parents)
- Skidmore v. Swift & Co., 323 U.S. 134 (standard for deference to informal agency interpretations)
- Hinojosa v. Horn, 896 F.3d 305 (5th Cir.) (§1503 provides adequate remedy precluding APA review)