ROEE KIVITI, ADIEL KIVITI and K.R.K., Plaintiffs, v. MICHAEL POMPEO, in his Official Capacity as Secretary of State, and U.S. DEPARTMENT OF STATE, Defendants.
Case 8:19-cv-02665-TDC
UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND
June 17, 2020
Civil Action No. TDC-19-2665
“American citizenship . . . is one of the most valuable rights in the world today.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). Plaintiffs Roee Kiviti, Adiel Kiviti, and their minor child K.R.K. have filed this civil action seeking to uphold this right, requesting a declaratory judgment that K.R.K. is a United States citizen and that the policy on which Defendants Secretary of State Michael Pompeo and the United States Department of State (collectively, “the State Department“) relied to deny K.R.K. a passport contravenes the United States Constitution, the Immigration and Nationality Act (“INA“),
BACKGROUND
Roee Kiviti, a 41-year-old man, was born in Israel, moved to the United States in 1982 when he was four years old, and became a United States citizen in 2001. In 2009, he moved back to Israel, where, in 2011, he met Adiel Kiviti. Adiel Kiviti, also a 41-year-old man, was born and raised in Israel. The couple married in Santa Barbara, California on October 15, 2013. Roee Kiviti‘s work took him back to the United States in 2014, and Adiel Kiviti, after applying for and receiving lawful permanent residency, moved to the United States in May 2015. On January 8, 2019, Adiel Kiviti was naturalized as a U.S. citizen.
In 2016, Roee and Adiel Kiviti (“the Kivitis“) had a son, L.R.K. L.R.K. was born in
In February 2019, the Kivitis had another child, K.R.K. Like L.R.K., K.R.K. was born through the use of ART, with a Canadian volunteer gestational surrogate implanted with a fertilized egg from an anonymous donor. Unlike for L.R.K., however, the donated egg was fertilized with genetic material from Adiel Kiviti instead of Roee Kiviti. On February 28, 2019, a Canadian court issued an order finding that Adiel Kiviti‘s biological and genetic relationship with K.R.K. had been established and ordering that the Kivitis, and not the surrogate, were K.R.K.‘s only parents. K.R.K. was subsequently issued a birth certificate identifying the Kivitis as K.R.K.‘s parents. The parties agree that the Kivitis are K.R.K.‘s legal parents.
On May 1, 2019, after returning to the United States with K.R.K., the Kivitis applied for a U.S. passport for K.R.K. at the Los Angeles Passport Agency. They were initially told that K.R.K. would be issued a passport in a few days. The next day, however, Adiel Kiviti received a telephone call from a State Department employee asking for more information, including specific information relating to the surrogacy arrangement. Adiel Kiviti then emailed the employee a copy of the Canadian court order that named the Kivitis as K.R.K.‘s parents. Nevertheless, because it was determined that Roee Kiviti did not have a biological relationship with K.R.K., the State Department evaluated K.R.K.‘s passport application under
On September 12, 2019, Plaintiffs filed suit in this Court. On December 9, 2019, Plaintiffs filed an Amended Complaint in which they assert that a State Department policy requiring that both parents be biologically related to a child in order to consider that child born in wedlock, and the application of that policy to deny K.R.K.‘s passport application, (1) was contrary to the text of the INA; (2) infringed on the substantive due process rights under the Fifth Amendment to the Constitution of the Kivitis to marry, procreate, and raise their children, and of K.R.K. to obtain United States citizenship at birth; (3) discriminated against the Kivitis as a same-sex couple and against K.R.K. based on the circumstances of her birth and parentage, in violation of the equal protection component of the Fifth Amendment‘s Due Process Clause; and (4) constituted arbitrary and capricious agency action that is contrary to law, in violation of the APA. As relief, Plaintiffs seek (1) a declaratory judgment pursuant to
DISCUSSION
In its Motion to Dismiss pursuant to
Plaintiffs oppose the State Department‘s Motion and also move for partial summary judgment under
I. Legal Standards
To defeat a motion to dismiss under
Although a party may move for summary judgment before the commencement of discovery, see
II. Citizenship at Birth
There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898); Miller v. Albright, 523 U.S. 420, 423 (1998) (plurality) (quoting Wong Kim Ark). Only the first source of citizenship, birth, is at issue here. Within this first category, the Constitution explicitly guarantees birthright citizenship to any child born within the United States: “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
A. The Statutory Framework
Congress has generally provided that under certain circumstances, a child “born . . . of” at least one U.S. citizen parent receives U.S. citizenship at birth even if that child is born outside the United States.
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.
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(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.
A second statute,
The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—
- a blood relationship between the person and the father is established by clear and convincing evidence,
- the father had the nationality of the United States at the time of the person‘s birth,
- the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
- while the person is under the age of 18 years—
- the person is legitimated under the law of the person‘s residence or domicile,
- the father acknowledges paternity of the person in writing under oath, or
- the paternity of the person is established by adjudication of a competent court.
B. The Foreign Affairs Manual
The Secretary of State is charged with administering the INA as it relates to “the determination of nationality of a person not in the United States.”
The FAM includes the State Department‘s interpretation of the INA as it relates to determining whether children born abroad are U.S. citizens at birth. See 8 Foreign Affairs Manual (“FAM“) §§ 301.4, 304.1, 304.3, Joint Record (“J.R.“) 105-21, ECF Nos. 57-7, 57-8, 57-9. Under this interpretation, any citizen-parent through whom U.S. citizenship is sought to be conveyed must be biologically related to the child. In general, the FAM states that “[a]bsent a blood relationship between the child and the parent on whose citizenship the child‘s own claim is based, U.S. citizenship is not acquired.” 8 FAM § 301.4(D)(1)(a). The FAM also applies a blood relationship requirement to the question of whether a child is born in wedlock or out of wedlock. The FAM states that “[t]o say a child was born ‘in wedlock’ means that the child‘s biological parents were married to each other at the time of the birth of the child.” 8 FAM § 304.1-2(c). Consequently, “[i]f a married woman and someone other than her spouse have a biological child together, that child is considered to have been born out of wedlock,” and “a child born to a married man and a person other than his spouse” will be considered to have been born “out of wedlock.” 8 FAM § 304.1-2(c). As a result, based on the FAM, the State Department will apply the reduced residency requirement of
The FAM further states that a male parent has “a biological relationship” with a child, or a “blood relationship” with a child as the term is used in
The FAM contains other provisions clarifying the application of this biological relationship requirement when ART was used in the birth of a child. The FAM provides that a surrogate who gives birth to the child but “who is not the legal parent of the child at the time of the child‘s birth in the location of the birth” is not relevant to the citizenship analysis. See 8 FAM § 304.3-2(a) (“[T]he surrogate‘s citizenship is irrelevant to the child‘s citizenship analysis.“). Likewise, an anonymous sperm or egg donor is also a nullity in the citizenship analysis. 8 FAM § 304.3-3 (“U.S. citizenship cannot be transmitted by an anonymous sperm or egg donor.“).
Further, the FAM identifies certain scenarios involving ART in which the child is deemed to be born in wedlock to two U.S. citizen parents. It provides that a child born abroad to a surrogate gestational mother who is not the child‘s legal parent
However, where a child is born to two married fathers by way of a surrogate who was implanted with an egg from an anonymous donor that was fertilized by one of the father‘s genetic material, the State Department does not consider that child to have been born in wedlock. According to the deposition testimony of Paul Peek, an official of the State Department‘s Bureau of Consular Affairs, two married men can never have a child that the State Department considers to have been born in wedlock. Instead, the children of such marriages are always deemed to have been born out of wedlock and must have their claims to citizenship at birth adjudicated through
III. INA
Plaintiffs first argue that the State Department, both in policy and practice, has misinterpreted the relevant provisions of the INA, which they contend establish that K.R.K. was a U.S. citizen at birth. The INA provides that “[i]f any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States,” that person may bring an action “for a judgment declaring him to be a national of the United States.”
This provision does not specify the circumstances under which a court should declare a person to be a national of the United States, so federal courts “look to the nationality provisions of the INA for guidance.” Patel v. Napolitano, 706 F.3d 370, 372 (4th Cir. 2013). Where the INA provides that a “national of the United States” includes “a citizen of the United States,”
Section 1401(c), provides, in its entirety:
The following shall be nationals and citizens of the United States at birth:
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(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.
On its face,
In a later case, the Ninth Circuit applied the holding of Scales to find that a plaintiff born in Mexico was a U.S. citizen at birth under
The United States Court of Appeals for the Second Circuit has reached the same conclusion on this issue. In Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018), the plaintiff had been born in Panama to a Panamanian mother who was at the time married to a U.S. citizen, Jorge Boreland. Id. at 184. Although it was undisputed that the plaintiff‘s biological father was a different man, Liberato Jaen, and the plaintiff‘s Panamanian birth certificate listed Jaen as the father, where the mother was married to Boreland at the time of the birth, the court held that, under the same “born . . . of parents” language in
In both Scales and Jaen, the court relied significantly on the fact that Congress included the term “blood relationship” in
One federal court has addressed this issue in the context of a same-sex couple and reached the same conclusion as to the statutory language. In Dvash-Banks v. Pompeo, No. 18-523-JFW(JCX), 2019 WL 911799 (C.D. Cal. Feb. 21, 2019), the court considered an application by a same-sex, married couple, one of whom was a U.S. citizen and one of whom was not, for U.S. citizenship for their twins born from a gestational surrogate in Canada though donor eggs, one of whom had the genetic material of the U.S. citizen father and the other of whom had the genetic material of
A. Statutory Interpretation
Upon review of the text of
1. “Parents”
The use of the term “parents” does not necessarily establish that a biological relationship is required with each parent. Nowhere in the INA is the term “parent” defined to include only those with a biological relationship to a child. The INA defines the term “parent” as used in subchapter III, the part of the INA including
In the absence of a specifically applicable definition of a key term, the Court looks to whether the term has an established common law meaning. See NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981) (“Where Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.“). At common law, the term “parent” does not refer only to those with a biological relationship with a child. The common law presumption of legitimacy, which assumes that where a child is born to a married couple, both married individuals are parents of the child, is a “fundamental principle of the common law.” Michael H. v. Gerald D., 491 U.S. 110, 113, 124 (1989) (plurality); see also McMillian ex rel. McMillian v. Heckler, 759 F.2d 1147, 1153 (4th Cir. 1985) (“The presumption is one of the most venerable, persistent, and continuously pervasive in the common law.“). In Michael H., the Supreme Court effectively recognized that status as a parent can derive from marriage rather than biology when it upheld against a due process claim a California law that allowed challenges to the presumption of the legitimacy of a child born into a marriage to be brought only by the husband or wife in the marriage, even though the result was that the rights of “the husband of the marriage” were given a categorical preference, and the biological father outside the marriage was unable to establish parental rights. Id. at 129. In so ruling, the Court noted that it was “not aware of a single case, old or new,” where a court “award[ed] substantive
Based on these longstanding principles, multiple state laws “generally require[] the name of the mother‘s male spouse to appear on the child‘s birth certificate—regardless of his biological relationship to the child.” See Pavan v. Smith, 137 S. Ct. 2075, 2077 (2017) (per curiam) (describing Arkansas law); see also
2. “Born . . . of”
In the face of this common law principle, the State Department argues that what matters in the phrase “born . . . of parents” is not the word “parents,” but rather the words “born of.” Reply Mot. Dismiss at 7, ECF No. 52. It argues that the dictionary definitions of “born” and “of,” when combined, mean that the child “originates or derives from those parents,” which it further argues can be the case only if there is a biological relationship to both of those parents. Mot. Dismiss at 20, ECF No. 46-1. This argument is unpersuasive for two reasons. First, the phrase “born . . . of parents” must still be viewed against the backdrop of the common law presumption of parentage, which effectively considered a child to be born of parents consisting of a biological parent and that parent‘s spouse at the time of the birth, without requiring proof that the spouse had a genetic relationship with the child. Indeed, in McMillian, the court noted that a state court order had identified the child at issue as “born of” the marriage of the mother and her husband who was not the biological father. See McMillian, 759 F.2d at 1149, 1153 (stating, in relation to the common law presumption, that “[i]t would be anomalous if federal statutory law concerned with or dependent in any way upon determinations of the parentage of children
Second, even under the State Department‘s approach, the term “born . . . of” is susceptible to a range of interpretations. A child could fairly be deemed to originate from parents other than through a genetic relationship, such as where two married parents both play a fundamental and instrumental role in the creation of the child, for example by, as here, together planning and supporting the use of surrogacy and ART to bring about the birth of a child to whom they have both committed in advance to be a parent. Indeed, the elasticity of the term “born . . . of” is evident from the State Department‘s recent change in policy, untethered to any change in the statute, to include within this term gestational mothers with no genetic relationship to the children they bear. Thus, the Court finds no biological requirement inherent in the phrase “born . . . of parents.”
3. “Blood Relationship”
In addition to considering the plain text of
Second, interpreting the “born . . . of parents” language used in
The State Department raises several arguments against the significance of the use of “blood relationship” in
Second, the State Department argues that its reading does not create superfluous provisions on biological relationships because “
4. Section 1401(g)
Finally, the Court finds that the State Department‘s interpretation is severely undermined because it leads to a result that is contrary to the language of the statute. Under the State Department‘s analysis, K.R.K. was born out of wedlock because one of her married parents is not
Upon consideration of the common law understanding of parentage alongside the text of both
B. Extra-Statutory Arguments
Where its interpretation of the language of the statute is unconvincing, the State Department offers various extra-statutory arguments. First, the State Department argues that because its interpretation that
Second, the State Department argued for the first time during the hearing on the Motions that the enactment of the Child Citizenship Act of 2000 (“CCA”), Pub. L. 106-395, 114 Stat. 1631 (2000), which granted automatic citizenship by naturalization to adopted and other children born outside the United States who do not qualify for citizenship at birth,
Third, the State Department argues that “a tiebreaking factor” is the deference owed to the State Department‘s interpretation under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Mot. Dismiss at 22. Specifically, it argues that the fact that the State Department has long interpreted
Finally, the State Department argues that its interpretation adheres to the principle of jus sanguinis, the concept
More broadly, although the State Department invokes the concept of jus sanguinis, it identifies no place in the Constitution, the INA, or another federal statute where that principle has been explicitly adopted by the United States. Certain nations have adopted the principle of jus sanguinis as the recognized basis for birthright citizenship. Faddoul v. INS, 37 F.3d 185, 189 n.3 (5th Cir. 1994) (“Jus sanguinis . . . continues to be the primary basis for citizenship throughout much of Europe, Africa, and the Near East.”). The United States, as reflected in the Fourteenth Amendment‘s guarantee of citizenship to all children born in the United States regardless of parentage, primarily subscribes to the principle of jus soli, “that the place of birth governs citizenship status except as modified by statute.” Rogers v. Bellei, 401 U.S. 815, 828 (1971); Wong Kim Ark, 169 U.S. at 674 (noting “the established rule of citizenship by birth within the dominion”). Thus, there is nothing inconsistent with the constitutional and legal traditions of the United States for Congress to have supplemented jus soli birthright citizenship with citizenship at birth for certain children who are born abroad based on parentage at birth, which traditionally has not been limited to biological parents but has included others, such as those who became parents at birth through marriage. Inclusion of all children born of two married U.S. citizen parents is fully consistent with the intent of the INA to “provide for a liberal treatment of children” and to address “the problem of keeping families of United States citizens and immigrants united.” H.R. Rep. No. 85-1199, at 2020 (1957); see also Solis-Espinoza, 401 F.3d at 1094 (stating that the INA “was intended to keep families together” and “should be construed in favor of family units and the acceptance of responsibility by family members”). Particularly where, as here, K.R.K. undisputedly has a biological relationship with a U.S. citizen father who was married to another U.S. citizen at the time of her birth, a finding that she was a U.S. citizen at birth under
C. Constitutional Avoidance
For their part, Plaintiffs argue that the principle of constitutional avoidance favors adoption of its interpretation of
As discussed above, the Court finds that, as a matter of the plain text of the statute,
Drawing on the Supreme Court‘s decisions in United States v. Windsor, 570 U.S. 744 (2013), Obergefell, 135 S. Ct. 2584, and Pavan, 137 S. Ct. 2075, Plaintiffs’ constitutional arguments are best understood as asserting three highly related claims. First, they argue that the State Department‘s policy violates the Kivitis’ substantive due process rights by infringing on their fundamental liberty interests in marriage and in forming a family. Second, they argue that the policy violates the Kivitis’ equal protection rights by treating their “marriage, as well as the marriages of other same sex couples, as second-class” because under the State Department‘s policy, a married male, same-sex couple will never be able to have their child considered to have been born in wedlock. Mot. Summ. J. at 31, ECF No. 47-1. Third, they argue that K.R.K‘s equal protection rights are violated because the policy “penalizes children for the circumstances of their birth.” Id. at 34. Plaintiffs assert both facial and as-applied challenges to the policy. In their Motion, Plaintiffs seek summary judgment only on their facial challenges.
Here, based on the less stringent residency requirements in the INA for children of married couples, the ability to confer citizenship on children falls within the “constellation of benefits that the State has linked to marriage.” Obergefell, 135 S. Ct. at 2601. The fact that, under the State Department‘s interpretation, a male same-sex married couple can never have a child deemed to be born in wedlock and receive the citizenship-related benefit associated with having such a marital child alone raises “serious . . . doubts” whether it infringes on that fundamental right. Jennings, 138 S. Ct. at 836. The State Department nevertheless argues that there are no plausible constitutional claims because the policy of requiring biological relationships with both parents in order for a child to be “born . . . of” those parents or to have been born in wedlock is applied evenhandedly, against both same-sex and opposite-sex couples alike. Under the State Department‘s interpretation, however, “[c]hildren born in wedlock are generally presumed to be the issue of the marriage,”
Furthermore, Peek, the Bureau of Consular Affairs official, testified in his deposition that it is “uncommon” to require DNA testing to establish a biological relationship, and “much more common” in cases involving ART, which reveals that even when ART is used, proof of a biological relationship is not always required. J.R. 137. Where the State Department effectively has acknowledged that it applies
Under these circumstances, although a determination of the constitutionality of the State Department‘s policy cannot be made without additional analysis, Plaintiffs have, at a minimum, established that the State Department‘s interpretation of the statute would raise “serious constitutional doubts” warranting application of the canon of constitutional avoidance. Clark, 543 U.S. at 381. If the canon were applied, it would favor Plaintiffs’ interpretation, which avoids a likely conflict with constitutional principles by more easily permitting equal treatment of same-sex male couples, particularly by allowing them to have a child in wedlock. Thus, although not necessary to the Court‘s conclusion, the canon of constitutional avoidance would provide an additional basis to support it.
Accordingly, the Court concludes that the State Department‘s application of
IV. APA
In addition to their claim under
The APA provides for judicial review of a final agency action only where “there is no other adequate remedy in a court.”
Here, there is such an alternative remedy:
Plaintiffs argue that their APA claim can provide them with “additional relief beyond that provided by Section 1503(a).” Mot. Summ. J. at 37. In particular, they seek an order setting aside the State Department‘s policy requiring two biological relationships to deem a child born in wedlock and to apply
CONCLUSION
For the foregoing reasons, the State Department‘s Motion to Dismiss will be GRANTED IN PART and DENIED IN PART. It will be granted as to the APA claim and otherwise denied. Plaintiffs’ Partial Motion for Summary Judgment will be GRANTED, and a declaratory judgment that K.R.K. is a U.S. citizen by birth will be entered in favor of Plaintiffs. A separate Order shall issue.
Date: June 17, 2020
/s/ Theodore D. Chuang
THEODORE D. CHUANG
United States District Judge