Kiviti v. Pompeo

Decision Date17 June 2020
Docket NumberCivil Action No. TDC-19-2665
Citation467 F.Supp.3d 293
Parties Roee KIVITI, Adiel Kiviti and K.R.K., Plaintiffs, v. Michael POMPEO, in his Official Capacity as Secretary of State, and U.S. Department of State, Defendants.
CourtU.S. District Court — District of Maryland

Clara N. Kollm, Susan Baker Manning, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Washington, DC, Aaron C. Morris, Pro Hac Vice, Immigration Equality, Karen Loewy, Pro Hac Vice, Omar Gonzalez-Pagan, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., New York, NY, Christie P. Bahna, Pro Hac Vice, John A. Polito, Pro Hac Vice, Joshua Rapoport, Pro Hac Vice, Morgan Lewis and Bockius LLP, San Francisco, CA, Jacquelynne M. Hamilton, Pro Hac Vice, Morgan Lewis and Bockius LLP, Philadelphia, PA, for Plaintiffs.

Alexis J. Echols, Courtney D. Enlow, Vinita Andrapalliyal, U.S. Department Of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

"American citizenship ... is one of the most valuable rights in the world today." Kennedy v. Mendoza-Martinez , 372 U.S. 144, 160, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Plaintiffs Roee Kiviti, Adiel Kiviti, and their minor child K.R.K. have filed this civil action seeking to uphold this right, requesting a declaratory judgment that K.R.K. is a United States citizen and that the policy on which Defendants Secretary of State Michael Pompeo and the United States Department of State (collectively, "the State Department") relied to deny K.R.K. a passport contravenes the United States Constitution, the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 – 1537 (2018), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 – 559, 701 – 706 (2018). Plaintiffs also seek a permanent injunction barring the State Department from enforcing this policy. Pending before this Court are the State Department's Motion to Dismiss and PlaintiffsPartial Motion for Summary Judgment. The Motions are fully briefed, and the Court held a hearing on both Motions on June 5, 2020. For the reasons set forth below, the State Department's Motion will be GRANTED IN PART and DENIED IN PART, and Plaintiffs’ Motion will be GRANTED.

BACKGROUND

Roee Kiviti, a 41-year-old man, was born in Israel, moved to the United States in 1982 when he was four years old, and became a United States citizen in 2001. In 2009, he moved back to Israel, where, in 2011, he met Adiel Kiviti. Adiel Kiviti, also a 41-year-old man, was born and raised in Israel. The couple married in Santa Barbara, California on October 15, 2013. Roee Kiviti's work took him back to the United States in 2014, and Adiel Kiviti, after applying for and receiving lawful permanent residency, moved to the United States in May 2015. On January 8, 2019, Adiel Kiviti was naturalized as a U.S. citizen.

In 2016, Roee and Adiel Kiviti ("the Kivitis") had a son, L.R.K. was born in Canada through the use of assisted reproductive technology ("ART"), through which a Canadian volunteer gestational surrogate was implanted with an anonymously donated egg fertilized with Roee Kiviti's genetic material. On November 30, 2016, a Canadian court issued an order finding that the genetic and biological relationship between Roee Kiviti and L.R.K. had been established and ordering that the Kivitis, and not the surrogate, were L.R.K.’s only parents. L.R.K. was subsequently issued a birth certificate identifying Roee and Adiel Kiviti as his parents. After returning to the United States with L.R.K., the Kivitis applied for a United States passport for L.R.K. at a State Department office in Washington, D.C. L.R.K. was issued a U.S. passport on January 13, 2017. At no point were the Kivitis asked about their biological relationship to L.R.K.

In February 2019, the Kivitis had another child, K.R.K. Like L.R.K., K.R.K. was born through the use of ART, with a Canadian volunteer gestational surrogate implanted with a fertilized egg from an anonymous donor. Unlike for L.R.K., however, the donated egg was fertilized with genetic material from Adiel Kiviti instead of Roee Kiviti. On February 28, 2019, a Canadian court issued an order finding that Adiel Kiviti's biological and genetic relationship with K.R.K. had been established and ordering that the Kivitis, and not the surrogate, were K.R.K.’s only parents. K.R.K. was subsequently issued a birth certificate identifying the Kivitis as K.R.K.’s parents. The parties agree that the Kivitis are K.R.K.’s legal parents.

On May 1, 2019, after returning to the United States with K.R.K., the Kivitis applied for a U.S. passport for K.R.K. at the Los Angeles Passport Agency. They were initially told that K.R.K. would be issued a passport in a few days. The next day, however, Adiel Kiviti received a telephone call from a State Department employee asking for more information, including specific information relating to the surrogacy arrangement. Adiel Kiviti then emailed the employee a copy of the Canadian court order that named the Kivitis as K.R.K.’s parents. Nevertheless, because it was determined that Roee Kiviti did not have a biological relationship with K.R.K., the State Department evaluated K.R.K.’s passport application under 8 U.S.C. § 1409, the statutory provision that applies to children born out of wedlock and cross-references 8 U.S.C. § 1401(g), which applies when a child is born to one U.S. citizen parent and one non-U.S. citizen parent. Because it determined that Adiel Kiviti had not satisfied the requirement of 8 U.S.C. § 1401(g) that he had resided in the United States for five years prior to K.R.K.’s birth, the State Department concluded that K.R.K. was not a U.S. citizen by birth and denied K.R.K.’s application for a U.S. passport.

On September 12, 2019, Plaintiffs filed suit in this Court. On December 9, 2019, Plaintiffs filed an Amended Complaint in which they assert that a State Department policy requiring that both parents be biologically related to a child in order to consider that child born in wedlock, and the application of that policy to deny K.R.K.’s passport application, (1) was contrary to the text of the INA; (2) infringed on the substantive due process rights under the Fifth Amendment to the Constitution of the Kivitis to marry, procreate, and raise their children, and of K.R.K. to obtain United States citizenship at birth; (3) discriminated against the Kivitis as a same-sex couple and against K.R.K. based on the circumstances of her birth and parentage, in violation of the equal protection component of the Fifth Amendment's Due Process Clause; and (4) constituted arbitrary and capricious agency action that is contrary to law, in violation of the APA. As relief, Plaintiffs seek (1) a declaratory judgment pursuant to 8 U.S.C. § 1503 that K.R.K. acquired U.S. citizenship at birth; (2) an order requiring the State Department to issue her a passport; (3) a judgment declaring the State Department's policy unconstitutional and in violation of the INA; (4) a permanent injunction against the State Department treating the children of same-sex couples as born out of wedlock and thereby denying them U.S. citizenship at birth; and (5) attorney's fees and costs.

DISCUSSION

In its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the State Department argues that its biological relationship requirement is not only consistent with, but also required by, the statutory language of the INA and further asserts that, to the extent that the INA's text is ambiguous, its interpretation is owed deference. As to the Fifth Amendment due process claim, the State Department argues that Plaintiffs have identified no fundamental liberty interest infringed upon by the denial of U.S. citizenship to K.R.K. and that this action is therefore subject to only rational basis review, which, the State Department argues, it easily passes. The State Department also argues that the equal protection claim must be dismissed because Plaintiffs failed to allege intentional discrimination by the State Department and because the policy is facially neutral and applies to same-sex and opposite-sex couples alike. Finally, it argues that the APA claim must be dismissed as Plaintiffs possess an adequate remedy at law.

Plaintiffs oppose the State Department's Motion and also move for partial summary judgment under Rule 56 on their INA and constitutional claims. Their Motion asserts that the State Department's interpretation of the INA is contrary to its statutory language and that, properly interpreted, the INA granted U.S. citizenship to K.R.K. at the moment of her birth. They also argue that the State Department's actions violated their substantive due process rights by infringing on multiple fundamental rights, in particular the right to marry and the "constellation of benefits ... linked to marriage," which includes the right to make choices relating to procreation and childrearing and to confer citizenship at birth upon their children. Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584, 2601, 192 L.Ed.2d 609 (2015). Finally, they argue that the State Department's policy violates their equal protection rights by treating same-sex couples and children of same-sex couples differently without a justification that would satisfy either heightened scrutiny or rational basis review. Plaintiffs have not moved for summary judgment on their APA claim but instead oppose the State Department's Motion to Dismiss this claim on the ground that they do not have an adequate remedy at law because the APA provides relief separate from that available through their other claims.

I. Legal Standards

To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for...

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    • ABA General Library Family Law Quarterly No. 54-4, January 2021
    • December 1, 2021
    ...spouse, or does not have custody of his or her children, the Secretary of Veterans Affairs may 24. Id. at 487. 25. Kiviti v. Pompeo, 467 F. Supp. 3d 293 (D. Md. 2020), appeal dismissed , No. 20-1882, 2020 WL 8509833 (4th Cir. Oct. 26, 2020). 26. Id. at 298; see Lena K. Bruce, Note, How to E......
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    ...LAW [section] 24 (McKinney 2008); GA. CODE ANN. [section] 19-7-22 (2021); 8 U.S.C. [section] 1409, invalidated by Kiviti v. Pompeo, 467 F. Supp. 3d 293 (D. Md. 2020), appeal dismissed, No. 20-1882, 2020 WL 8509833 (4th Cir. Oct. 26, (85.) Illegitimate, adj. and n., OED Online, www.oed.com/v......
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    ...Amendment's Equal Protection Clause by appealing to the fact that only women get pregnant and bear children). (4.) Kiviti v. Pompeo, 467 F. Supp. 3d 293, 306-08 (D. Md. 2020) (recognizing that a child can be "born... of" same-sex parents through alternative reproduction for the purpose of a......
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    • ABA General Library Family Law Quarterly No. 54-4, January 2021
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    ...spouse, or does not have custody of his or her children, the Secretary of Veterans Affairs may 24. Id. at 487. 25. Kiviti v. Pompeo, 467 F. Supp. 3d 293 (D. Md. 2020), appeal dismissed , No. 20-1882, 2020 WL 8509833 (4th Cir. Oct. 26, 2020). 26. Id. at 298; see Lena K. Bruce, Note, How to E......
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