On Thursday, US District Judge John F Walter of the Central District of California ruled in favor of a same-sex couple from California in a birthright citizenship case, allowing both of the couple’s twin sons to be legally declared citizens of the United States.

The US-Israeli couple, Andrew and Elad Dvash-Banks, were married in Toronto and became fathers via surrogacy in Canada. One of the twins carries Andrew’s DNA, while the other carries Elad’s.

The ruling said that the Trump administration’s US State Department wrongly interpreted a statute relating to birthright citizenship, when they ruled that only the child with the US father’s DNA was legally a U.S. citizen.

The couple’s attorney and executive director of Immigration Equality, Aaron C Morris, stated that the family was being held to a different standard because the parents were same-sex. The US State Department claimed otherwise, suggesting that because only one of the children came from a US citizen, that child was the only one who could also be a citizen. They referenced the department’s website, stating that “a child born abroad must be biologically related to a US parent” in order to acquire US citizenship.

The court of the Central District of California disagreed with the State Department, ruling that blood was irrelevant to the issue. Judge John F. Walter said that because the couple is married, the child could be considered an American citizen. He wrote that “the word “parents” as used in Section 301(g) of the Immigration and Nationality Act (INA) is not limited to biological parents and that the presumption of legitimacy that applies when a child is born to married parents…cannot be rebutted by evidence that the child does not have a biological tie to a U.S. citizen parent.”

This is an important ruling as it sets precedence for future cases involving same-sex parents where one of the parents is a U.S. Citizen and the other parent is a citizen of another country. A similar case in London involving American Allison Blixt and her Italian wife Stefania Zaccari, could be favorably affected by this ruling.

If you or someone you know is in a same-sex marriage and wants to petition for their children have them contact an experienced immigration attorney like those at Rotella & Hernandez.

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