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May 27 - When the U.S. State Department last week rescinded a policy that denied birthright American citizenship to some babies born abroad to same-sex married couples, Morgan, Lewis & Bockius partner Susan Baker Manning rejoiced in helping pave the way.
Working pro bono alongside co-counsel from Immigration Equality and Lambda Legal, Manning successfully argued two of the lead cases challenging the policy.
She said the work enabled the legal team to right "such a stark wrong," adding, “It was a great experience to help these families."
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For her efforts on these cases, as well as her years of pro bono advocacy on behalf underrepresented and disenfranchised people, she is Legal Action’s Pro Bono Hero for the month of May.
Video-Pro Bono Heroes: Morgan Lewis wins child citizenship for same-sex parents: https://reut.rs/3uwU2ZI
An IP lawyer by training (“I’m enough of a nerd to say that I love patent litigation – I’ll own it,” she told me), Manning in 2019 became Morgan Lewis’ first senior pro bono trial lawyer, leading the 2,200-lawyer firm’s high-impact pro bono docket.
In the two State Department cases, Manning along with Morgan Lewis colleagues John Polito, Eleanor Pelta, Christie Bahna, Joshua Rapoport and Kevin Papay represented a pair of families that found themselves in similarly distressing situations.
Derek Mize and Jonathan Gregg are both U.S. citizens who have been married since 2015. Their daughter Simone was born three years later in England via surrogacy, but the State Department refused to recognize her American citizenship, treating her instead as if she was born out of wedlock.
Likewise, Roee and Adiel Kiviti are also U.S. citizens. They got married in 2013 in California, but their daughter Kessem, who was born in Canada in 2019 through surrogacy, was also denied birthright citizenship.
The couples were “horrified” when informed by U.S. embassy staff that their children were not citizens, Manning said.
Under the Immigration and Nationality Act, citizenship for a baby born abroad hinges in part on whether the parents were married at the time of the birth.
If the answer is no, there are a host of additional, burdensome requirements for the baby to attain citizenship—especially if the father is an American and the mother is not.
But if both parents are married U.S. citizens, under Section 301 of the law it’s simple: The baby is a U.S. citizen (provided one parent lived in the U.S. at any point prior to the baby’s birth).
Section 301 doesn’t say anything about requiring a biological relationship between the child and both of his or her married parents. The law presumes that the child of a married couple is their issue.
Manning’s clients are legally married U.S. citizens. But biologically speaking of course, only one member of the couple can be the child’s genetic father.
That’s what the State Department zeroed in on.
The government “denied the reality of their families, and that was really hurtful,” Manning said.
In the case of Derek Mize and Jonathan Gregg, Simone’s biological father was Gregg. His sperm was used to fertilize an anonymously donated egg that was implanted into a gestational surrogate, a friend of theirs who lived in England.
Gregg is a U.S. citizen from birth, born in London to a married U.S. citizen. But he’d only lived in the U.S. since 2014.
Rather than recognizing Simone’s birthright citizenship as the child of married parents, the State Department used the more stringent standards applicable to children born out of wedlock.
By that measure, Gregg fell short because he hadn’t lived long enough in the U.S. to confer citizenship to Simone -- never mind that Mize, Simone’s other legal father, had spent his entire life in America.
Mize and Gregg sued in U.S. District Court for the Northern District of Georgia in July of 2019, arguing that a “similarly-situated different-sex couple and their baby would not have been treated the same way.”
Moreover, they said that the policy stigmatized and demeaned their family by “refusing to recognize and give effect to Mr. Mize and Mr. Gregg’s marriage, denying the reality of the father-daughter relationship between an infant and both of her fathers.”
Two months later, Manning and co-counsel brought a similar suit in Maryland federal court on behalf of Roee and Adiel Kiviti stemming from the treatment of their daughter Kessem.
Both cases resulted in strong summary judgment opinions siding with Manning’s clients.
Sidestepping the constitutional issues, U.S. District Judge Michael Brown in Atlanta found that Section 301 “does not require children to share a biological relationship with both citizen parents in order for those children to acquire citizenship at birth.”
Likewise, U.S. District Judge Theodore Chuang in Maryland ruled that the “use of the term ‘parents’ does not necessarily establish that a biological relationship is required with each parent.”
Faced with mounting court losses - the State Department was also sent packing in two other cases where lawyers from Sullivan & Cromwell working pro bono with Immigration Equality played lead roles - the government folded on May 18.
“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,” the department said in a statement. “This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas.”
For Manning and her clients, it’s a happy ending. “The State Department absolutely saw the writing the wall,” she said, adding that her clients are “thrilled. They’re very gratified to be a part of a real and important change.”
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