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The State Department Is Denying Citizenship To Some Kids Born To Same-Sex Couples Overseas. Judges Aren't Happy.

A federal judge in DC denied the government's effort to get a lawsuit tossed out brought by a lesbian couple — one woman is a US citizen, one not — whose son born overseas was denied citizenship.

Posted on May 15, 2019, at 5:28 p.m. ET

Courtesy of Immigration Equality and Allison Blixt

Stefania Zaccari (left), Allison Blixt, and their two sons.

WASHINGTON — The State Department on Wednesday lost again in court in its bid to refuse US citizenship to some children who are born overseas to married same-sex couples.

US District Judge Emmet Sullivan in Washington, DC, denied the government's request to dismiss a lawsuit brought by a married lesbian couple — one woman is a US citizen, the other is not — whose son was denied US citizenship. The noncitizen parent, an Italian citizen, gave birth to the child, and the US government is arguing that his lack of a biological relationship to the US citizen parent makes him ineligible for citizenship. The couple has another son whom the State Department deemed a US citizen because the US citizen parent gave birth to him.

Sullivan didn't rule on the merits of the case, but he repeatedly expressed his discomfort with the State Department's position, calling it a "terrible situation." He kept returning to the hypothetical of the family arriving at a US airport, and the US citizen child watching as his brother is questioned by immigration authorities — a scenario he described as "outrageous" and "horrible."

"It tugs at the heartstrings," Sullivan said. "All they're asking for is, treat this child the same as the sibling."

Sullivan on Wednesday rejected the Justice Department's argument that the couple in the case before him, Allison Blixt (the US citizen) and Stefania Zaccari (the Italian citizen), lacked standing to sue. He also found that at this early stage of the proceedings, the couple had "plausibly" alleged that the State Department's policy unconstitutionally discriminated against same-sex parents and was motivated by a discriminatory purpose.

Sullivan pressed Justice Department lawyer Vinita Andrapalliyal to explain where the State Department found legal authority to impose a biological relationship requirement. Andrapalliyal said it was articulated in a document called the Foreign Affairs Manual. Sullivan asked how that language ended up in the manual. When Andrapalliyal replied that it had been in the manual for several decades, Sullivan said he wasn't satisfied with an answer that something had "always been that way" — he noted that was an argument used to justify slavery.

At one point, Sullivan said it was a "terrible situation" to have a US citizen child whose brother is recognized as a "blood sibling" but not as a fellow citizen. Andrapalliyal jumped in, saying the noncitizen child was a "half-sibling."

Sullivan is the second judge this year to rule against the government in a case involving similar facts. In February, a federal judge in California ruled that a child born overseas to a married gay couple where one man is a US citizen and the other is not was eligible for US citizenship even though the child wasn't biologically related to the US citizen. The Daily Beast, which has written a string of stories on this legal fight, reported earlier this month that the government is appealing that decision.

In the California case, US District Judge John Walter wrote in his February decision that the section of US immigration law typically applied to children born overseas to married parents did not require a biological relationship with both parents.

In both the DC and California cases, the State Department applied a section of US immigration law that relates to children born overseas out of wedlock, even though both couples are married. In the California case, the judge applied the section that applies to married couples, and Blixt and Zaccari have argued for that as well. They've raised the same argument as in the California case that a biological relationship requirement isn't supported by the law.

Andrapalliyal argued that the government would apply the same rules to an opposite-sex couple who had child overseas if the child wasn't biologically related to a US citizen parent. She said the State Department's interpretation was rooted in the historical principle of citizenship being tied either to where a person was born or their blood relationship to a citizen.

Ted Edelman, one of the lawyers representing Blixt and Zaccari, argued that the State Department's position broadly discriminated against married same-sex couples who wanted to have children.

Edelman told Sullivan that previous attempts at reaching a settlement were unsuccessful, but the judge throughout Wednesday's hearing urged the government to find a way to settle the case, saying it "cries out" for resolution.

As the case moves forward, Edelman asked Sullivan for time to seek evidence from the government, a request the government opposed. Sullivan said he'd turn the matter over to a magistrate judge to help both sides reach an agreement on how to proceed.

However, Sullivan said he wanted the case to move quickly, adding that it seemed as though the "current administration" was engaged in "a lot of foot-dragging in court." He warned that he would "redefine" sanctions if he thought one side was trying to delay things.

Assuming Sullivan issues a judgment in favor of Blixt and Zaccari, the government is expected to appeal, given its handling of the California case to date.

CORRECTION

A federal judge in California ruled that a child did not need to be biologically related to a married US citizen parent to be eligible for citizenship. A previous version of this story incorrectly described the decision.

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