WASHINGTON (CN) – A federal judge advanced a case Wednesday involving whether a child born to a mixed-nationality lesbian couple should be granted U.S. citizenship.
U.S. citizen Allison Blixt married her Italian partner Stefania Zaccari in England, and each proceeded to bear a child using their own eggs and sperm donors.
While the State Department granted U.S. citizenship to Massimiliano Axel Zaccari-Blixt, who was born to Allison, it denied citizenship to Massimiliano’s brother Lucas, born to Stefania.
The couple sued in January 2018, represented by Elizabeth Cassady with New York-based Sullivan & Cromwell and Aaron Morris from advocacy group Immigration Equality. They claim the State Department wrongy applied Section 309 Immigration and Nationality Act – which applies to children born out of wedlock – instead of Section 301, which they say would result in citizenship for Lucas.
“Because the State Department therefore wrongly considered them to have been born ‘out of wedlock,’ it concluded that they could qualify for citizenship at birth only as the children of unwed parents, and therefore could acquire such citizenship only pursuant to Section 309 and only if Allison gave birth to them both,” the couple say in their lawsuit.
This past September, lawyers for the State Department asked U.S. District Judge Emmet G. Sullivan to dismiss the case, arguing federal law requires “both a legal relationship and a biological relationship for a child to acquire citizenship from that parent.”
“[Federal law] provides an avenue for at-birth citizenship in the case of a U.S. citizen mother in an out of wedlock birth, provided the U.S. citizen mother meets the physical presence requirements contained within the statute,” Joseph Hunt with the Department of Justice’s Civil Division wrote in the motion to dismiss.
A U.S. Citizenship and Immigration Services technical update to both section 309 and 301 grants citizenship to “a person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is an alien and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years.”
Blixt says she lived in the United States for over 20 years and meets the agency’s requirements.
As for the “out of wedlock” question, Hunt argued it is up to the State Department to issue citizenship in these cases, and if any doubt exists then citizenship can be denied. He said the agency includes “absent a blood relationship between the child and the parent on whose citizenship the child’s own claim is based” as doubt enough to deny such citizenship.
But Judge Sullivan denied the government’s motion from the bench and will allow the case to proceed.
“The judge’s decision to hear this case is an important step forward for the Zaccari-Blixt family and all families who are currently being denied equal treatment under the law,” Morris of Immigration Equality said in a statement after a status conference held earlier Wednesday. “The government should change its policy, and we will keep fighting until they do.”
The Justice Department did not respond to requests for comment by press time.