Tag Archive for: ART

Cyrus Mehta

State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad Is Welcome and Consistent with Federal Court Decisions

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On May 18, 2021, the State Department issued guidance broadening the path for transmission of US citizenship to a child born abroad to married parents. The guidance is reproduced below:

Recognizing the advances in assisted reproductive technology the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for acquisition of U.S. citizenship at birth.

Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.  Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.

This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.

This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA.   Requirements for children born to unmarried parents remain unchanged.

At the same time, we remain vigilant to the risks of citizenship fraud, exploitation, and abuse.  As with all citizenship and immigration benefits we examine, the Department will implement this policy in a manner that addresses these concerns.

This new interpretation allows a U.S. citizen who has a child through surrogacy, an egg donor, in vitro fertilization as well as other advances in assisted reproductive technology (ART)  to transmit U.S. citizenship to their child, even if there is no genetic or gestational relationship to the U.S. citizen parent so long as such a link exists with the other married parent. As stated in the State Department’s announcement, this change in policy “takes into account the realities of modern families.” This is welcome news for a growing number of families who rely on the advancements of reproductive technologies to build their families.

For instance, prior State Department policy deprived the US citizen mother who may neither have been the gestational mother nor have a genetic relationship with the child from passing US citizenship. A US citizen mother is medically unable to bear a child and needs to use a surrogate mother overseas to carry the child to birth, and the egg is not hers and the sperm is from a non-US citizen father, US citizenship could not be passed onto the child. Thus, under the prior policy, such a mother who for medical reasons was unable to establish a biological link to her child, and also could not serve as the gestational mother herself, was unable to transmit US citizenship to her child. This was unfair for such mothers.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. The willingness and ability to understand parentage in a broader sense is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law and more recently a Second Circuit case, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005);   Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018).  In these cases,  so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of the US citizen parent to acquire citizenship.

Public policy supports recognition and maintenance of a family unit. The Immigration and Nationality Act (“INA”) was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir.1980) (discussing the “humane purpose” of the INA and noting that a “strict interpretation” of the Act, including an “arbitrary distinction” between legitimate and illegitimate children, would “detract from … the purpose of the Act which is to prevent continued separation of families.”); H.R.Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N.2016, 2020 (observing that the “legislative history of the Immigration and Nationality Act clearly indicates that Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united).

Solis-Espinoza, supra, at 1094.

The Second Circuit in Jaen v. Sessions did not insist on a genetic or gestational tie with the US citizen parent, and the State Department’s new policy is consistent with Jaen v. Sessions. David Isaacson’s blog, Jaen v. Sessions: The Government Reminds Us That Government Manuals Aren’t Always Right, correctly pointed out that the prior US government policy or guidance may not actually be the law, and federal courts need to step in to point this out. Fortunately, the State Department has now stepped in.  In Jaen v. Sessions, as discussed in David’s blog,  Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland.  But Jaen’s Panamanian birth certificate indicated that his father was another man named Liberato Jaen. Jaen moved to the US at the age of 15 as a nonimmigrant in 1988 and lived with the Boreland family. In 2008, Jaen was placed in removal proceedings based on controlled substance violations and he moved to terminate proceedings on the ground that he was a US citizen. The Immigration Judge denied the motion, and the Board of Immigration Appeals affirmed. The Second Circuit reversed and pointed out that  the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth.  As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father.  Jaen, slip op. at 13 & n. 5.  This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes.

Although the State Department policy is meant to cover children born through ART, it is clearly applicable to out of wedlock scenarios in Jaen, Solis-Espinoza and Scales. Levy Alberto Jaen, for example, had a genetic link to his non-US citizen mother Leticia Rogers Boreland, who was married to his US citizen legal (although not biological) father Jorge Boreland.  Consistent with the new State Department policy, Jaen had a genetic or gestational tie to at least one of [his] parents, Leticia, and she was married to another, U.S. citizen parent of his. Though born in Mexico, Solis-Espinoza claimed citizenship by virtue of the US citizenship of the woman he knew as his mother.   That woman, who was married to Solis-Espinoza’s biological father at the time of petitioner’s birth, acknowledged him from his infancy as a member of her family and raised him as his mother, though he did not in fact have a biological connection with that woman. Scales was born in the Philippines in 1977, to Stanley Scales, Sr.  an American citizen-serviceman at the time, and Aily Topaz, a Philippine citizen.   Stanley and Topaz met during the first week of September 1976, and one week later, Topaz told Stanley that she was pregnant, probably from a prior relationship.  Topaz and Stanley were married on March 13, 1977, and Petitioner was born on April 6, 1977.

Although one arguable difference is that he had a legally relevant third parent to a greater extent than generally exists in ART cases (where the egg or sperm donor is usually acknowledged not to have legal parentage rights),  it isn’t unheard of for a child to have more than two parents for immigration purposes especially in the stepparent context. The State Department’s new policy is not only consistent with the common law meaning of “parent” in the INA, especially INA 301(g), but it is also in keeping with public policy that supports the recognition and maintenance of a family unit.

 

 

 

 

Cyrus Mehta

Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective

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There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban.  The Museum of Modern Art (MOMA) has also joined the protests by displayng works of artists from the banned countries among other iconic works of art in its permanent collection. One has to go through the galleries housing the permanent collection to serendipitously come across the work of an artist from a banned country, which in the age of Trump, have also attained iconic status. Art is able to inspire the lawyer in protesting the ban. Trump’s exclusion of an entire people from a banned country casts all of them as terrorists, including the artist. This is both legally wrong and morally shameful.

These are three of my favorites among the works of the artists from the banned countries at the MOMA. I have also included at the end the works of two artists from my own very modest art collection. I am happy to possess these works, which have always been beautiful, but resonate more powerfully today. They inspire me as I protest Trump’s ban.

Charles Hossein Zenderoudi – born in Iran

Ibrahim el- Salahi - born in Sudan

Ibrahim el- Salahi – born in Sudan

Parviz Tanavoli – born in Iran

 

These are two works from my own collection, the first which I acquired in 1993 and the second in 2010.

 

Reza Derakshani – born in Iran

Mary Yahya – born in Iraq

Cyrus Mehta

TRANSMISSION OF AMERICAN CITIZENSHIP THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY – AN UPDATE

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By Gary Endelman and Cyrus D. Mehta

“The journey of a thousand miles begins with a single step” Lao –Tzu, Chinese philosopher (604 BC-531 BC)

Ed. note – This article updates information from a previous piece, “Answer Man: Assisted Reproductive Technology and U.S. Immigration Law.”

The Department of State has announced a major and most welcome policy shift to facilitate the transmission of American citizenship to children born outside the United States using Assisted Reproductive Technology (ART). It will no longer be necessary in all such cases for the “mother “to have a genetic link to the child. The Department has happily now recognized that American mothers can pass on citizenship to children to whom they give birth regardless of whose egg was used for conception. The “mother” must be the legal mother at the time and place of the child’s birth and the gestational mother. Under the new State Department policy, the biological mother can either be the genetic or the gestational mother; the biological father can obviously only be the genetic father.  The State Department policy goes onto clarify: 

If the child is biologically related to a US citizen father, but not to the father’s spouse, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to INA 309(a), and the father would have to meet the additional requirements of that section.  If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen mother, and would have to meet the requirements of INA 309(c).  If the child is the biological child of both parents, and the biological parents are married to one another, INA 301 requirements would apply, including a requirement that at least one of the US citizen parents had resided in the United States prior to the child’s birth.

In addition, the State Department now views the child of a legally married lesbian couple as being “born in wedlock” if the baby is conceived from the egg of one mother and carried by the other.

Under the new policy, a US citizen mother who gives birth to a biological child abroad, including through a foreign surrogate (via her egg), can apply for a US passport and Consular Report of Birth Abroad. While the USC parent with the biological nexus should be listed on the CRBA, a second parent can be listed as well if they can document a legal relationship under local law.

It should be noted that this new policy is retroactive. In those instances where an immigration benefit was denied to the foreign-born child of a gestational and legal American mother, the parent should now submit a new application corroborated by probative evidence that they satisfy the substantive requirements of the new policy.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. While a genetic footprint will still be necessary for children born out of wedlock to American fathers under INA 309, it will no longer be required for citizenship claims in all other cases arising under INA 301 which is silent on the need for genetic parentage. The willingness and ability to understand parentage in the legal and gestational sense, as well as in the genetic sense, is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005) and, most recently, Gonzalez-Marquez v. Holder, http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/01/03/12-71861.pdf. In these cases, so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of his USC mother in order to acquire citizenship.  The Department of State, by allowing the transmission of citizenship through a gestational mother, has advanced the concept of family unity which is the organizing principle at the heart of our immigration system:
Public policy supports recognition and maintenance of a family unit. The Immigration and Nationality Act (“INA”) was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir.1980) (discussing the “humane purpose” of the INA and noting that a “strict interpretation” of the Act, including an “arbitrary distinction” between legitimate and illegitimate children, would “detract from … the purpose of the Act which is to prevent continued separation of families.”); H.R.Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N.2016, 2020 (observing that the “legislative history of the Immigration and Nationality Act clearly indicates that Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united).
Solis-Espinoza, supra, at 1094.

For all of its manifest merits, however, this new policy does not go as far it we would like it to go. If there is no biological link, but the US citizen is still considered as the legal mother under local or foreign law, will the claim to citizenship be accepted?  It does not seem so, unless the mother was the genetic or gestational mother. It is certainly true that, if the mother is neither the genetic nor the gestational mother, but the sperm is that of the US citizen father, US citizenship can still be acquired under the out of wedlock provisions pursuant to INA 309. Yet, what if the father is a lawful permanent resident or perhaps a non-immigrant, while the mother is a US citizen who lacks a genetic or gestational relationship with the baby but nonetheless is the mother under the law of the country of birth? Under these slightly altered facts, there is no automatic transmission of citizenship. This should change.  The State Department is to be praised for recognizing that there need be no biological link but should a child be deprived of the priceless gift of citizenship simply because his or her US citizen mother is unable to bring them to birth due to a medical infirmity? Practically speaking, if the US citizen mother is able to carry the baby, but needs another female’s egg, there would be no reason to leave the USA and the child thus born in the US would be a birthright citizen. It is only when the US citizen mother cannot use her own egg or carry the baby to term that she needs to enter into an arrangement with a surrogate mother overseas. In such an instance, the citizenship of the child should not depend on the sperm donor father being an American citizen. As long as the law of the state or jurisdiction recognizes the US citizen mother as the child’s legal mother who is married to the father, that should be all that matters. Such a policy would be in accord with Scales and Solis-Espinoza.

None of this detracts from the wonderful step that the State Department has made. Let us recognize and rejoice in this advance while we hope for further progress down the road. This is a long journey but the ART update is a milestone along the march. Thanks to the Department of State, the law on citizenship transmission is now far more aligned with modern science and contemporary social mores. No longer is it required that both spouses in a marital union be genetically related to their child as a condition of bring a citizenship claim under INA 301. Legal children born in wedlock now will have the same ability to acquire citizenship at birth as anyone else notwithstanding the continued relevance of genetics. Parents legally bound to each other and to their child under local or foreign law can now apply for a US Passport secure in the knowledge that their baby will not be left stateless. Same sex marriages will now enjoy the presumption of legitimacy for the conferral of citizenship that they have never known.

Not bad.

Authors’ Note: This comment is dedicated to the shining memory of Carmen DiPlacido, author of the Child Citizenship Act. To those who knew the pleasure of his company, the warmth of his friendship, the depth of his wisdom and the strength of his intellect, this is precisely the kind of change that Carmen would have championed, one that reflects equity and inclusiveness. He lived these values and this policy embodies them.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan. A prior version of this article was published on blog.fosterquan.com on February 10, 2014).