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Posts Tagged ‘Immigration Equality’

Trump Administration’s 11th Hour Attempt to Restrict Refugee Claims Blocked by Federal Court

Posted on: January 9th, 2021 by Art Leonard No Comments

The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11.  District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position.  The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations.  Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.

The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General.  During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return.  Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”

In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.”  In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.

As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts.  Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants.  As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.

Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors.  Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment.  Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month.  The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato.  Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case.  The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.

In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS.  By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed.  Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed.  Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary.  Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.”  Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid.  McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned.  Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.

Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect.  At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case.  For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.

Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts.  The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending.  “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented.  “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise.  It did not.”  To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy.  In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”

“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”

This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case.  Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.

Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated.  Issuing the preliminary injunction was a promising first step.

Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.

Federal Court Orders State Department to Recognize Birthright Citizenship of Child Born Overseas to Married Gay Male Couple Through Gestational Surrogacy

Posted on: August 29th, 2020 by Art Leonard No Comments

A U.S. District Judge in Georgia issued a ruling on August 27 that a married male couple’s daughter, conceived through donor insemination from a donated egg with an English woman serving as gestational surrogate, should be deemed a natural-born U.S. citizen and entitled to a passport over the objections of the State Department.  The complication in this case is that the spouse whose sperm was used was not a U.S. citizen at the time, although he since has become one through the marriage to his native-born U.S. citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, 2020 WL 5059253, 2020 U.S. Dist. LEXIS 156121 (N.D. Ga., Aug. 27, 2020), presents issues similar to those in Kiviti v. Pompeo, 2020 WL 3268221 (D. Md. June 17, 2020), decided a few months earlier by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14th Amendment of the Constitution, all persons born in the United States are citizens at birth, regardless of the nationality or citizenship status of their parents.  By statute and court decision, the only people born in the U.S. who are not citizens at birth are children born to foreign diplomats stationed in the U.S. or temporary tourist or business visitors.  The citizenship of children born overseas to U.S. citizens is determined by a statute, the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending whether the child’s U.S. citizen parents are married to each other when the child is born.  One provision concerns the overseas children of married U.S. citizens, and a different provision applies if the children are born “out of wedlock.”  As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them.  If the parents are not married, at least one them who is biologically related to the child must be a United States citizen who has resided in the U.S. for at least five years.

In this case, James Mize, a native-born U.S. citizen, and Jonathan Gregg, a British native, met when Gregg moved to the U.S. in 2014 and they subsequently married.  They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate.  They obtained an anonymously donated egg which was fertilized in vitro with Jonathan’s sperm, implanted in their friend, who bore the child in England in 2018.  The local authorities issued a birth certificate recognizing the two men as the parents of the child, identified in court papers as SM-G.  The men had moved to England before the child was conceived.  After she was born, they applied for a U.S. passport and citizenship declaration, but the State Department refused to provide it.  The Department treated the child as if she was born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the United States as a citizen long enough to confer birthright citizenship on her.  Mize is not her biological parent, so the Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have proved to be a recurring issue for gay male couples who go out of the country to have children through surrogacy, as it has generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump Administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their 5th Amendment constitutional rights, violated the INA, and also violated the Administrative Procedure Act.

Meanwhile, however, because of the citizenship status eventually acquired by Gregg through his marriage to Mize, their daughter ultimately acquired naturalized citizenship as the minor child of a naturalized citizen while this case was pending, and is living with the couple in Georgia.  In addition to refusing to change its interpretation of the INA and moving for summary judgment as to that, the State Department also suggested that the case should be dismissed as moot, since the child now has a U.S. passport as a “naturalized” citizen by derivation from her biological father.

U.S. District Judge Michael Brown rejected the mootness argument before turning to the merits of the case in his August 27 opinion.  He said that the dignitary harm suffered by the men in their marriage being deemed irrelevant for the purpose of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Judge Brown pointed out that as a matter of constitutional law, under the Supreme Court’s decisions in Obergefell v. Hodges in 2015 and Pavan v. Smith in 2017, same-sex marriages are supposed to be treated the same as opposite sex marriages for all purposes of law.  They are entitled to the same rights and have the same responsibilities. However, if the INA can be interpreted to treat their daughter as a child “of the marriage,” then the provision concerning the children of married U.S. citizens would apply and there would be no requirement that the child be biologically related to both parents to be a birthright citizen, and the court would not have to address the constitutional issues.

Judge Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way.  If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the 5th Amendment.   Federal courts apply a doctrine of “constitutional avoidance.”  They avoid having to decide questions about the constitutionality of a statute or its interpretation by the government if there is a reasonable way to interpret the statutory language to make the constitutional issues go away.

In this case, Judge Brown, in line with several prior district court decisions, concluded that such an interpretation is possible.  The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that SM-G is a child “of” their marriage in a practical sense.  Thus, the court concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as U.S. parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Judge Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, rendering it unnecessary to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied.  He dismissed the Administrative Procedure Act claim as moot.

The State Department could decide to appeal this ruling, which would be consistent with the Trump Administration’s general tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages.  Unsurprisingly, the Department filed an appeal of the Kiviti decision in the 4th Circuit Court of Appeals on August 14, but in the normal course of things that appeal will probably not be argued for several months and a decision would be unlikely until sometime next year at the earliest.  Meanwhile, the Trump Administration could consistently file an appeal in this case to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, it is possible that the State Department would decide to protect the rights of same-sex couples and their children by revising the Foreign Affairs Manual to adopt an interpretation consistent with  the court’s rulings for the guidance of U.S. consulates and embassies that receive these sorts of applications when children are born to U.S. citizens overseas.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.

Two Lawsuits Challenge State Department’s Refusal to Recognize Same-Sex Marriages

Posted on: January 25th, 2018 by Art Leonard No Comments

 

Immigration Equality and cooperating attorneys from Sullivan & Cromwell LLP have filed two lawsuits against the U.S. State Department, challenging the Department’s refusal to recognize the birthright citizenship of two youngsters who are children of dual-nation married same-sex couples. The complicated cases turn on interpretation of a federal statute, Section 301(g) of the Immigration and Nationality Act (referred to as the INA), which establishes the citizenship status of persons born abroad to married U.S. citizens.  Blixt v. U.S. Department of State, Case 1:18-cv-00124 (D.D.C., filed Jan. 22, 2018); Dvash-Banks v. U.S. Department of State, Case 2:18-cv-00523 (C.D. Cal., filed Jan. 22, 2018).

The Constitution provides in the 14th Amendment that every person born in the United States is a citizen of the U.S.A. and of the state in which they were born. In the INA, Congress addressed the question whether people born overseas would also be treated as citizens if their parents are U.S. citizens.  The statute provides that a person born abroad will be treated as a U.S. citizen at birth if at least one of the person’s married parents is a U.S. citizen, and  as long as the U.S. citizen parent had been “physically present” in the U.S. for at least 5 years after their 14th birthday.

One of the lawsuits, filed in a U.S. District Court in the Central District of California (whose main courthouse is in Los Angeles), concerns Andrew Mason Dvash-Banks and Elad Dvash-Banks, a married couple, and their twin children, Ethan and Aiden. Andrew is a U.S. citizen, born in California in 1981, who lived continuously in the U.S. until 2005, when he moved to Israel and subsequently enrolled in a graduate program at Tel Aviv University.  There he met Elad Dvash in 2008.  Elad was born in Israel in 1985 and had lived there his entire life before meeting Andrew.  The two men went to Toronto, Canada, and were married there in a civil ceremony on August 19, 2010.

An act of the Canadian parliament, responding to rulings by various Canadian courts, established same-sex marriage in that country several years earlier. After marrying, Andrew and Elad moved to California, where they decided to raise a family. Because the federal Defense of Marriage Act precluded any recognition of their marriage by the U.S. government, Elad could not obtain permanent residence in the U.S. as Andrew’s legally recognized spouse, so they decided to move back to Toronto, where they could live together as a legally recognized married couple and start their family.

They decided to have twins using one surrogate who carried two embryos through to delivery of their sons. Each of the men is the biological father of one of the twins, who were born in Ontario in September, 2016.  Their Canadian birth certificates list both men as the fathers of each of the children, Ethan and Aidan.  The U.S. Defense of Marriage Act was declared unconstitutional by the Supreme Court in 2013, so at the time the twins were born there was no legal impediment to their Canadian marriage being recognized by the U.S. government in the same way any other legally valid marriage between a U.S. citizen and a non-citizen conducted abroad would normally be recognized.

After the children were born, their parents took them to the U.S. Consulate in Toronto to apply for their “Consular Reports of Birth Abroad” and to obtain U.S. passports for them. Because Andrew is a U.S. citizen and the children were born in 2016 within his legal marriage to Elad, he contends, both boys are entitled under Section 301(g) to be treated as U.S. citizens at birth.  But the officials with whom they dealt in Toronto didn’t see things that way.  They insisted that only Aiden, who was conceived using Andrew’s sperm, would be considered a U.S. citizen.  Ethan, who was conceived using Elad’s sperm, would not, because as far as the State Department was concerned, he had no genetic tie to a U.S. citizen, which the State Department decided was necessary for him to be treated as a U.S. citizen, relying on a different section of the law dealing with children born outside the United States out of wedlock.

In effect, the State Department was treating the marriage of Andrew and Elad as having no legal significance in determining Ethan’s citizenship.

This appears, on its face, inconsistent with the Supreme Court’s decisions in Obergefell v. Hodges (2015) and Pavan v. Smith (2017), which make clear that same-sex marriages are to be treated the same as different-sex marriages for all purposes of U.S. law. It also seems inconsistent with U.S. v. Windsor, which ruled that the U.S. government is required to recognize lawfully contracted same-sex marriages.

The other lawsuit, filed in Washington, D.C., presents a variation on the same story, involving Allison Dawn Blixt, who was born and raised in the United States, and her Italian wife, Stefania Zaccari, and their two sons, Lucas and Massi.

Alison lived in the U.S. continuously from her birth until 2008. She is a lawyer who began practicing at a law firm in New York beginning in 2005.  Stefania, born in Italy, met Allison in 2006 when Stefania was visiting New York on vacation.  After Stefania returned home, the women’s relationship continued at a distance.  Wanting to live together as a married couple, they moved to London, where Allison worked in the London office of her law firm and Stefania could freely relocate from Italy because of the freedom of movement within the European Union.  The women entered a civil partnership in England in 2009.  After the U.K. legislated for marriage equality, they took the necessary steps to convert their civil partnership into a legal marriage in 2015, retroactive to 2009 as allowed under British law.

Meanwhile, they decided to have children. Stefania gave birth to their first son, Lucas, conceived with sperm from an anonymous donor, in January 2015, a few weeks after they had converted their civil partnership into a marriage, and both women were listed on the birth certificate as parents.  They had another child in 2017, Massi, with Allison as the birth mother using sperm from the same anonymous donor, so that the boys would be biological half-brothers.  Massi’s birth certificate lists both women as his parents.  Both sons were born when their mothers were legally married, and at a time when under U.S. law their British marriage would be entitled to recognition.

After each child was born, they went to the U.S. Embassy in London to apply for a Consular Report of Birth Abroad and a U.S. passport for their sons. In 2015 they were told they couldn’t apply for Lucas, the first-born, because he was not biologically related to Allison, the U.S. citizen of the couple.

They returned to the Embassy after Massi was born in 2017, seeking to apply on behalf of both boys. Massi’s application was granted based on Allison’s U.S. citizenship, but Lucas’s application was denied.  In a letter communicating the denial, the State Department said: “It has been determined that there is not a biological relationship between the U.S. citizen mother and child, through either a genetic parental relationship or a gestational relationship, as required under the provisions of Section 309(c) of the Immigration and Nationality Act.”  Section 309(c) is, however, irrelevant, because it deals with children born “out of wedlock,” that is, to unmarried parents.  But Allison and Stefania are married, and they have a constitutional right to recognition of their marriage by the U.S. government.

In essence, the State Department is flouting the Supreme Court’s decisions. Pavan v. Smith was a dispute about Arkansas’s refusal to issue birth certificates showing both mothers of children born to married lesbian couples who conceived their children using donated sperm.  The Court said that Arkansas had to apply the same rule it used when different-sex married couples had children through donor insemination.  Although the father in such a case is not biologically related to the child, nonetheless he is entitled to be listed on the birth certificate and treated as the child’s legal father.  The Supreme Court, quoting from its early decision in Obergefell, said that married same-sex couples are entitled to the same “constellation” of rights as married different-sex couples.  And, of course, in U.S. v. Windsor, the Court made clear that legally married same-sex couples are entitled to have their marriages recognized on the same basis as the marriages of different-sex couples by the U.S. government.

That includes, these two new lawsuits argue, having their marriages recognized under Section 301(g), and thus conferring on their children U.S. citizenship, regardless which of the parents is their biological father or mother.

This is not just a new Trump Administration move. The Dvash-Banks family encountered their problem with the State Department in 2016, during the last year of the Obama Administration, and the Blixt family’s attempt to get a passport for Lucas was rebuffed in 2015.  What these cases will require is for the courts to be faithful to the broad rulings in Obergefell, Pavan and Windsor, and to treat these boys as U.S. citizens since they were born to married couples, each of which included one spouse who is a U.S. citizen and who clearly fulfills the residency requirements established in Section 301(g).  Treating them as children born “out of wedlock” is a failure of their rights to equal protection and due process of law under the 5th Amendment, argues the complaint.

Both complaints seek a declaratory judgment stating that the State Department’s application of its policies in these cases is unconstitutional and that each of the boys in question is a U.S. citizen. The complaints seek injunctions ordering the State Department to cease discriminating against married same-sex couples by classifying their children as being “born out of wedlock.” Of course, if the courts grant the requested relief, the plaintiffs are also seeking an award of attorneys’ fees and reasonable litigation costs.