A new lawsuit out of the United States District Court for the District of Maryland, Southern Division argues the U.S. Department of State has refused to recognize the citizenship of Kessem Kiviti, the daughter of married gay couple Roee and Adiel Kiviti, who are both U.S. citizens.
The fathers, who married in California in 2013, had their daughter via surrogacy in Canada in February. As only Adiel has a biological connection to Kessem, the State Department insists the couple’s daughter was “born out of wedlock,” maintaining she must have a genetic relationship to a U.S. citizen parent who has resided in the U.S. for five years, according to law nonprofit Lambda Legal, who filed the litigation alongside nonprofit Immigration Equality and pro bono counsel Morgan Lewis.
While both Roee and Adiel have U.S. citizenship, Adiel falls one year short of the residency requirement. In refusing to recognize Kessem’s citizenship, the Sept. 12 lawsuit alleges the State Department disregards Roee and Adiel’s marriage, as well as Roee’s paternity.
“Kessem was born to two dads. By refusing to recognize Kessem as a U.S. citizen at birth, the Department of State seeks to erase her family ties and to disrespect Roee’s and Adiel’s marriage. This is not only unlawful, it is also cruel and un-American,” said Omar Gonzalez-Pagan, senior attorney at Lambda Legal in a statement. “The Supreme Court has repeatedly affirmed that same-sex couples are entitled to the same constellation of benefits linked to marriage as different-sex couples. The government cannot refuse to recognize Roee’s and Adiel’s marriage, nor Kessem’s citizenship at birth. We will fight for the dignity of all LGBT families.”
Born in Israel, Roee grew up in Southern California and became a U.S. citizen in 1993. He met Adiel in 2009, and the two began dating two years later. After marrying, the couple lived abroad until moving back to the U.S. in 2015. Adiel, also born in Israel, became a U.S. citizen in January.
In 2016, the couple fathered their first child Lev, also via surrogacy in Canada. Their premier heir was recognized as a U.S. citizen since birth.
When Roee and Adiel applied for Kessem’s passport, they were initially told their request was approved and paid for her documentation. The next day, an attorney from the State Department called Adiel inquiring about his U.S. residency and informing him the government would determine Kessem’s citizenship through an Immigration and Nationality Act stipulation that exclusively applies to children “born out of wedlock,” the California couple alleges in the lawsuit.
The government denied Kessem’s passport application, and Adiel and Roee were told she would not be recognized as a U.S. citizen. The baby has been living in Maryland on a Canadian tourist visa that expires this month.
“The focus here is our little girl whose rights are being infringed upon by our government,” Roee and Adiel said in a statement. “Every parent wants to protect their child, to give them assurances of tomorrow, and this policy isn’t letting us do that. Our daughter will know her story. She will know how she came into this world, she will know about all of the loving people who helped us become a family, and she will know how her parents fought for her rights and for the rights of other families.”
This is the fourth lawsuit Immigration Equality has filed in relation to this State Department policy. In July, the nonprofit again teamed up with Lambda Legal and pro bono counsel to file a case in the Northern District of Georgia on behalf of same-sex couple and U.S. citizens Derek and Jonathan Mize-Gregg, whose daughter Simone was denied citizenship under the same mandate.
In February, a federal judge ruled in favor of Elad and Andrew Dvash-Banks, another California couple with a similar case. The State Department filed an ongoing appeal against the decision in May.
“This is a fight for marriage equality. It is a fight for the fundamental right of citizenship,” said Aaron C. Morris, executive director of Immigration Equality. “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.”