Fathers Sue State Dept., Pompeo Over Denial of Child's Citizenship

Another same-sex couple just sued the U.S. State Department and Secretary of State Mike Pompeo for denying citizenship to their child.

Roee and Adiel Kiviti of Chevy Chase, Md., represented by Immigration Equality, Lambda Legal, and pro bono counsel Morgan Lewis, say the State Department refused to recognize the U.S. citizenship of their daughter, Kessem, under a policy that treats the children of same-sex couples as if they were born out of wedlock, according to a press release from the two organizations. Several other couples have sued over this policy, and at least one has won at the trial court level, but the State Department is appealing the ruling.

In their suit, filed today in U.S. District Court in Maryland, the Kivitis note that they are married U.S. citizens and that in almost all cases, the U.S. government will recognize a child born to two married U.S. citizens as a citizen at birth, whether or not the child has a biological relationship to both parents. But same-sex couples have often seen that recognition denied in the past few years -- since Donald Trump became president -- with the State Department citing the lack of a biological relationship to one parent.

Both men were born in Israel. Roee grew up in Southern California and became a U.S. citizen in 2001. He and Adiel married in California in 2013, and they lived abroad for a couple of years, returning to the U.S. in 2015. Adiel became a U.S. citizen in January of this year.

They had a son, Lev, via surrogacy in 2016. He was born in Canada but was recognized as a U.S. citizen since birth, and when the two men applied for a passport for him in January 2017, it was quickly approved. Kessem was born in February of this year, also in Canada and via surrogacy. When her fathers applied for a passport for her, the State Department told them she did not qualify for U.S. citizenship because she has a biological relationship only to Adiel, who has lived in the U.S. for less than five years.

"Because only Adiel has a biological connection to Kessem, the State Department is disregarding Roee and Adiel's marriage and treating Kessem as 'born out of wedlock,' meaning she must have a biological relationship to a U.S. citizen parent who has resided in the U.S. for five years," according to the press release. "This requirement is not meant to be applied to the children of married U.S. citizens. Even though both of Kessem's fathers are U.S. citizens, Adiel falls one year short of the residency requirement, and the State Department completely disregards Roee as her father."

"This was not an aberration or the unsanctioned conduct of a single State Department employee," the lawsuit states. "To the contrary, it is State Department policy to disregard the relationship between a child and his or her non-biological parent -- a policy that leads the State Department to routinely refuse to recognize the lawful marriages of same-sex couples and classify their children as non-marital children. However, a similarly situated different-sex couple and their baby would not have been treated the same way."

The policy puts the family at risk, the suit notes, as Kessem is now living in the U.S. under a Canadian tourist visa that expires this month. It also stigmatizes and demeans the family by refusing to recognize the couple's marriage and fatherhood, and singles out the family for government-sponsored discrimination.

The Kivitis seek a declaration that Kessem has been a U.S. citizen since birth, an order instructing the State Department to issue her a passport immediately, and an end to the policy of treating children of same-sex couples differently from those of opposite-sex couples.

"This is a fight for marriage equality. It is a fight for the fundamental right of citizenship," Aaron C. Morris, executive director of Immigration Equality, said in the press release. "By refusing to recognize their rights as a married couple, the State Department is treating Roee and Adiel as second-class citizens and treating Kessem as if she is not a citizen at all. The administration has made abundantly clear it will ignore the law and Constitution. We will not stand for it."