Mize v. Pompeo

• Decision Date: 27 August 2020
• Docket Number: Case No. 1:19-cv-03331
• Citation: 482 F.Supp.3d 1317
• Parties: James Derek MIZE and Jonathan Daniel Gregg, individually and on behalf of their minor child, S.M.-G., Plaintiffs, v. Michael R. POMPEO, in his official capacity as Secretary of State, and the U.S. Department of State, Defendants.
• Court: U.S. District Court — Northern District of Georgia

482 F.Supp.3d 1317

James Derek MIZE and Jonathan Daniel Gregg, individually and on behalf of their minor child, S.M.-G., Plaintiffs,

v.Michael R. POMPEO, in his official capacity as Secretary of State, and the U.S. Department of State, Defendants.

Case No. 1:19-cv-03331

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 27, 2020

Aaron Curtis Morris, Immigration Equality, Karen Loewy, Pro Hac Vice, Omar Gonzalez-Pagan, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., New York, NY, Charis Redmond, Pro Hac Vice, Christie P. Bahna, Pro Hac Vice, John A. Polito, Pro Hac Vice, Morgan, Lewis & Bockius, LLP, San Francisco, CA, Eleanor Pelta, Pro Hac Vice, Susan Baker Manning, Pro Hac Vice, Morgan, Lewis & Brockius, LLP, Washington, DC, Jacquelynne M. Hamilton, Pro Hac Vice, Morgan Lewis & Bockius, Philadelphia, PA, Tara L. Borelli, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, for Plaintiffs.

Kuntal Cholera, Alexis J. Echols, U.S. Department of Justice, Civil Division, Washington, DC, R. David Powell, Office of the United States Attorney, Atlanta, GA, for Defendants.

OPINION & ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

Plaintiffs James Derek Mize and Jonathan Daniel Gregg are U.S. citizens married to one another. In 2018, they had a child using Gregg's sperm, an anonymously donated egg, and a gestational surrogate. The child, Plaintiff S.M.-G., was born in England, and that country issued a birth certificate listing Mize and Gregg as S.M.-G.’s parents. The couple later applied for a U.S. passport and other proof of citizenship for their daughter. The U.S. Department of State ("State Department") denied S.M.-G.’s applications, concluding she was not a U.S. citizen at birth because she shares a biological relationship with only one of her citizen parents (Gregg) who had not been physically present in the United States for long enough. In doing so, the State Department treated S.M.-G. as if she had been born out of wedlock.

Plaintiffs filed suit challenging that determination and arguing the State Department's actions violate the Immigration and Nationality Act ("INA"), the Due Process Clause of the United States Constitution, and the Administrative Procedures Act ("APA"). Defendants Michael R. Pompeo and the State Department moved to dismiss for lack of jurisdiction or, in the alternative, for failure to state a claim. (Dkts. 32; 63.) The parties also cross-moved for partial summary judgment. (Dkts. 44; 50.) Having considered the issue, the Court denies Defendants’ jurisdictional motion, partially grants and partially denies Defendants’ motion to dismiss for failure to state a claim, grants Plaintiffs’ summary judgment motion, and denies Defendants’ summary judgment motion.

I. Background

A. The INA

"There are two sources of citizenship, and two only: birth and naturalization." Miller v. Albright , 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (Stevens, J.). This case is about the former. The Fourteenth Amendment confers citizenship on persons "born in the United States." Id. at 423–24, 118 S.Ct. 1428. Persons born abroad "acquire citizenship by birth only as provided by Acts of Congress." Id. at 424, 118 S.Ct. 1428.

The INA is the primary Act of Congress governing birthright citizenship for foreign-born children. It makes citizenship dependent upon the child's parents. Section 301 provides "[t]he general rules for acquiring U.S. citizenship," and Section 309 provides the rules specifically applicable to children "born out of wedlock." Sessions v. Morales-Santana , ––– U.S. ––––, 137 S. Ct. 1678, 1686–87, 198 L.Ed.2d 150 (2017) ; 8 U.S.C. §§ 1401, 1409. The result is that Section 301 is necessarily limited to children born in wedlock. See Sessions , 137 S. Ct. at 1686–87 (Section 301 is "[a]pplicable to married couples," whereas Section 309 "pertains specifically to children with unmarried parents").

Subsections (c) and (g) of Section 301 provide the rules most relevant to our case. They confer U.S. citizenship on:

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

...

(g) 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, at least two of which were after attaining the age of fourteen years[.]

8 U.S.C. §§ 1401(c), (g). Under these provisions, married parents who are both citizens pass citizenship to their child at birth so long as either parent had a residence in the United States (or an outlying possession) prior to the birth. On the other hand, if only one married parent is a citizen, that couple passes citizenship to their child at birth only if the citizen parent has lived in the United States (or an outlying possession) for at least five years.

In Section 309 (applicable to nonmarital children), the rules vary depending on whether citizenship is sought through the father or the mother. If citizenship is sought through the father, Section 309(a) incorporates Section 301's requirements and adds several other requirements of its own:

(a) The provisions of paragraphs (c), (d), (e), and (g) of [Section 301] shall apply as of the date of birth to a person born out of wedlock if—

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person's birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years—

(A) the person is legitimated under the law of the person's residence or domicile,

(B) the father acknowledges paternity of the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

Id. § 1409(a). If citizenship is sought through the mother, Section 309(c) describes the rules that apply:

Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

Id. § 1409(c).¹

B. Defendants’ Interpretation of the INA

The State Department has published a Foreign Affairs Manual ("FAM") that, together with other handbooks, forms "a single, comprehensive, and authoritative source for the Department's organization structures, policies, and procedures." (Dkts. 7 ¶ 24; 50-2 ¶ 42). The FAM "convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates." (Id. ) It is not, however, the product of notice-and-comment rulemaking, congressional action, or formal adjudication. (Dkts. 7 ¶ 25; 50-2 ¶¶ 38, 40.)

The FAM describes the State Department's policy on the acquisition of birthright citizenship by children born abroad. The policy contains two key principles rooted in biology. The first says that foreign-born children cannot acquire birthright citizenship unless they share "a blood relationship [with] the parent(s) through whom citizenship is claimed." 8 FAM § 301.4-1(D)(1)(a); (see Dkt. 7 ¶¶ 27–28). The second says that children are "born out of wedlock" if their biological parents were unmarried at the time of birth; and that children are born "in wedlock" if their biological parents were married at the time of birth. 8 FAM § 304.1-2. Based on these principles, the State Department applies Section 301 to marital children only if they share a biological relationship with both parents. (Dkt. 7 ¶¶ 27–28.) Otherwise, the State Department applies Section 309, even though that provision is statutorily limited to children born "out of wedlock." (Id. ); 8 U.S.C. § 1409. The result is that, under the State Department's interpretation, a child cannot acquire citizenship under Section 301(c) unless his or her parents are married U.S. citizens and he or she shares a biological relationship with both parents.

Of course, that interpretation leaves out many children born to U.S. citizens through assisted reproductive technology ("ART"). In 2014, the State Department modified its handbook to address that situation by providing that "a woman may establish a biological relationship with her child either by virtue of being the genetic mother (the woman whose egg was used in conception) or the gestational mother (the woman who carried and delivered the baby)." 8 FAM § 301.4-1(D)(1)(c). No amendment to the INA triggered this change; the State Department simply altered its implementation of the statute. As a result, when a U.S. citizen wife acts as a gestational mother for a donor egg fertilized by her citizen husband's sperm, the State Department now considers that child to have been born in wedlock of two citizens. 8 FAM § 304.3-1(a) And, when two married women who are citizens decide one of them will carry an egg donated from the other and fertilized by an anonymous sperm donor, the State Department reaches the same conclusion — that child is considered to have been born in wedlock of two U.S. citizens. 8 FAM § 304.3-1(b). In this latter instance, the State Department determines the child has a biological relationship with two women and totally ignores the citizenship of...