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Court Upholds Previous Ruling That Twin Son of Gay, Jewish, Married Couple Born Abroad Is U.S. Citizen from Birth

Both courts found that the State Department had wrongly interpreted the Immigration and Nationality Act.
[additional-authors]
October 9, 2020
The Dvash-Banks’ Photo Courtesy Immigration Equality

A panel of the U.S. Court of Appeals for the Ninth Circuit unanimously upheld a lower court ruling on Oct. 9, recognizing the citizenship from birth of Ethan Dvash-Banks, a twin boy born abroad by surrogacy to Andrew and Elad Dvash-Banks, a married gay couple.

The Dvash-Bankses are Jewish and live in Los Angeles. Israeli-born Elad works at IKAR. Both courts found that the State Department had wrongly interpreted the Immigration and Nationality Act (INA). Further, the Ninth Circuit noted that the State Department’s interpretation of the INA was foreclosed by settled circuit case law, which reiterated that the section of the law applying to married couples, “does not require a biological relationship between a child and the citizen parent through whom citizenship is claimed.”

“After years of the federal government denying Andrew and Elad’s rights as a married couple, the Ninth Circuit has unequivocally ruled in the family’s favor,” Aaron C. Morris, executive director of Immigration Equality and co-counsel for the family said in a statement. “No longer will these parents have to worry that their twin sons will be treated as if they were born out of wedlock simply because they have two fathers. This decision demonstrates yet again that it is far past time for the State Department to change its discriminatory policy.”

“We are overjoyed and gratified by today’s decision that our twin sons should be treated the same as the children of all other marriages, and we hope this decision will help other LGBTQ families secure the equal rights they deserve,” the Dvash-Bankses said in a statement.

Elad told the Journal in a phone interview shortly after the verdict, “We never wanted to be in this situation. We never felt like we wanted to put our life and our family on display but we were forced to do that because of the State Department’s decision to not grant Ethan citizenship at birth and a passport when was asked for it.”

The decision is the latest in a series of victories for LGBTQ families represented by Immigration Equality. Elad referenced those decisions, noting of the Ninth Circuit’s decision. “We were the first same-sex family case around this issue but there were two other cases that had been determined before by the Ninth Circuit so there was a precedent. There’s no biological requirement needed to have U.S. citizenship at birth as long as your parents are married and the child is born within the marriage.”

He added that he hoped the decision helps other same sex couples that might have to go through the same process in the future.

 

“We are overjoyed and gratified by today’s decision that our twin sons should be treated the same as the children of all other marriages, and we hope this decision will help other LGBTQ families secure the equal rights they deserve.” — Andrew and Elad Dvash-BankS

As the Journal previously reported, the Dvash-Bankses had twin sons during their marriage through surrogacy in Canada. Andrew is a U.S. citizen and Elad is an Israeli citizen. One of the twins was conceived from Andrew’s genetic material, and the other from Elad’s. Andrew and Elad subsequently sought recognition of the twins’ U.S. citizenship.

The State Department, applying an internal policy, treated their children as though they were born out of wedlock. The State Department recognized Aiden as a U.S. citizen, but not Ethan because he was not biologically related to his U.S.-citizen father. With Immigration Equality’s assistance, the family filed a lawsuit in January 2018 and Ethan was issued a U.S. passport in 2019 after a federal court ruled in his favor, a decision the State Department appealed.

Ethan and Aidan are now 4 years old, having just celebrated their birthdays on Sept. 16. Elad noted that they were barely 2 when this entire process began, and while they are still not aware of their notoriety, the Dvash-Bankses have made sure to document everything to show the boys when they are older, including a gmail address for each of them that they use as a sort of time capsule. “When they get to their b’nei mitzvah I’ll give them the passwords so they can see everything,” Elad said.

He added, “We are very proud of what we’re doing and we want to teach our kids to fight for what’s right — for justice and equality — and I feel that this is a part of it. When they’re old enough to understand what we were fighting for for Ethan and for our family, [they’ll be able to see] this was the right thing to do.”

It’s also important, he said, that the twins know that they are not “the same as other families; we have to go through hoops and other challenges that others don’t have to but we do it with our heads high and with determination and the belief that justice will eventually prevail, and that’s what happened.”

Repeating a quote originating from 19th-century minister and abolitionist Theodore Parker (often attributed to Rev. Martin Luther King Jr.) and adding that IKAR’s “Rabbi [Sharon Brous] quotes many times,” ‘The arc of the moral universe is long but bends towards justice.’ Even when it took a long time, the outcome is a positive one for us and hopefully for other families,” Elad said.

Noting that the Ninth Circuit ruling came down right before Simchat Torah, he added, “Hopefully [like Simchat Torah], we have finished a chapter and we will start a much better chapter remembering what happened before.”

On a personal level, Elad said the entire family is going to celebrate the ruling with
“a big, big cake and ice cream. That’s [the twins’] favorite.

 

 

 

 

 

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