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  #81  
Old 29 January 2018, 03:56 PM
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Originally Posted by UrbanLegends101 View Post
Agree with you on this.

Unfortunately, the citizenship issue only applies in situations when the child is born outside the United States.

Unless the UK couple was attempting to bring forth a particular issue with US law, all of their problems would have disappeared had the Italian citizen mother given birth in the United States. There would have been near zero issue with the US citizenship at birth status.

Italy is a US visa waiver country and she and her spouse could have easily come to the United States for the birth.
That's a pretty stunning statement.

They live in the UK because at the time they wanted to marry, they could not do so in the US. So they made a life in another country.

Please provide a cite for the source of information you have that they could have "easily" come to the US to give birth. In fact, it would have been an illegal entry if the Italian mother had relied on the visa waiver program, because her purpose would not have been business or tourism. And you can't just hop on a plane and take an international flight when you are 9 months pregnant and nearing your due date. So, they would likely have had to come well in advance. How many people do you know who can step away from their lives to camp out in another country to wait for their kid to be born there?

How do you think the Border Control agents would respond if she answered honestly--as you are required by law to do -- when she was asked about the purpose of her trip?

And finally, why would they have had any reason to think this would be the subject of any inquiry? I know you maintain that State's statement that biological relationship has been required since 1790 is true, but these questions only started being asked a few years ago, even though assisted reproduction has been around for a lot longer, and of course there have always been other ways to not be the genetic parent of your child.

Last edited by erwins; 29 January 2018 at 04:02 PM.
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  #82  
Old 29 January 2018, 04:59 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by erwins View Post
That's a pretty stunning statement.

They live in the UK because at the time they wanted to marry, they could not do so in the US. So they made a life in another country.

But making sure the second child was a US citizen was also an important part of the equation, as well?

Is the real issue if the second child is a US citizen at birth or simply a US citizen? There are ways to naturalize the child born to the Italian parent, but the child would not be a US citizen at birth.


Quote:
Originally Posted by erwins View Post
Please provide a cite for the source of information you have that they could have "easily" come to the US to give birth. In fact, it would have been an illegal entry if the Italian mother had relied on the visa waiver program, because her purpose would not have been business or tourism. And you can't just hop on a plane and take an international flight when you are 9 months pregnant and nearing your due date. So, they would likely have had to come well in advance. How many people do you know who can step away from their lives to camp out in another country to wait for their kid to be born there?

The Italian spouse was visiting the family of the US citizen spouse. That would not be a lie in itself. They expected to return back to the UK prior to the due date, but for whatever reason, they did not leave the United States prior to the birth.

Some airlines appear to allow pregnant women to travel up to 8 months.

I only suggest this as a possibility.



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Originally Posted by erwins View Post
How do you think the Border Control agents would respond if she answered honestly--as you are required by law to do -- when she was asked about the purpose of her trip?
I agree that the time involved could be the most limiting factor of all, that staying in the United States for three months could have been a financial issue. The pregnant spouse is visiting her spouse's family. No lie is involved.






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Originally Posted by erwins View Post
And finally, why would they have had any reason to think this would be the subject of any inquiry? I know you maintain that State's statement that biological relationship has been required since 1790 is true, but these questions only started being asked a few years ago, even though assisted reproduction has been around for a lot longer, and of course there have always been other ways to not be the genetic parent of your child.
Understand, but due diligence might have been the key to this.

As for the questions just being asked a few years ago, I can't tell you the time line but my guess is that once assisted pregnancy options became a far more common reality of life for some couples, the availability for these pregnancy options was brought to the attention of the consular sections and State Department because of the potential for fraud.

I am sure that if every child had DNA testing with comparison to the parents, I'd suggest there might be some surprises. At least for children born in the United States, US citizenship is not generally an issue.

Somewhat related, on the immigrant visa side, when couples have been petitioned for immigrant visas, in some situations, State Department found these couples were presenting relatives as their biological children and DNA testing has shown yes, the children were kin, but not the product of the two adults in the marriage and the children were not formally adopted. This screening has been going on for years, to make sure the children are really the children of the two adults.
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  #83  
Old 29 January 2018, 05:26 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by Esprise Me View Post
It's the position of the State Department, which is not the entirety of the US government.
As I understand it, there are only two agencies which will be involved in these matters, US Citizenship and Immigration Services and DOS. Based on a quick review of information from USCIS website, it appears the two agencies appear to be in agreement, although USCIS might be moving in a different direction, per the information at this link:


https://www.uscis.gov/policymanual/U...141028-ART.pdf

This may contradict State's position.

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Originally Posted by Esprise Me View Post
The intent of Congress is not the only question. The law, or this particular interpretation of the law, must also pass constitutional muster, i.e. by not violating equal protection, or unduly infringing the fundamental right to have and raise one's children.
On this, may I respectfully disagree. I think Congressional intent is important. If indeed it has been the intent that there must be a biological linkage, then State Department will stand.

While I understand where you are going with the rights to have and raise one's children, those rights are not impacted the child not being a US citizen at birth.

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Originally Posted by Esprise Me View Post
I'm also not sure slowing down the process would be the biggest disadvantage. There's a strong public policy in favor of the marital presumption of parentage; undermining that in favor of a policy in which biology is determinative does not seem like a good idea.
You may be very correct, and I think that it will be up to the courts in these two cases to see if biological linkage is going to remain the official position of the US government, or that the term parent in the specifics of transmitting US citizenship at birth to a child born outside the United States is going to expand to include every parentage situation.

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Originally Posted by Esprise Me View Post
I'm not sure where you're going with this. Foster parents have no rights over foster children. There is no due process requirement to remove a foster child from a home the state believes to be sub-optimal. Foster children cannot gain citizenship through having US citizen foster parents--not just birthright citizenship, they can't be naturalized that way either. We're not talking about foster parents; we're talking about two legal same-sex parents.
I was using this in the more general term of parent, in the idea of a functional family unit, even one recognized by law, but does not involve transmittal of US citizenship for a birth outside the United States. Perhaps it was not a good example, and I wasn't trying to make this more confusing.

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Originally Posted by Esprise Me View Post
These kids will both inherit from both their mothers, same as bio kids. Both mothers have the right to care, custody, and control of both kids, because they are the legal parents. It's only the issue of citizenship that sets them apart, in a way that is clearly discriminatory at least in its effect (perhaps also in its intent, but I don't think that matters.)
Agree with you, for the most part. It is this citizenship issue which is the entire concern. Does their legal parent relationship meet the criteria for transmittal of US citizenship to a child born outside the United States? We do appear to be on opposite sides of this, and from a family perspective, taking the citizenship out of this equation, I actually agree with you.

I think we may simply have to agree to disagree on this specific point and await the outcome in the legal arena.

I've never been a consular officer nor an adjudicator in these matters. If I were, I'd have to use the FAM guidance and pass the issue back to Main State for their decisions. The beauty of the system is if the applicant for the Consular Report of Birth Abroad is not happy with the decision, there is the court system to utilize. If the courts rule in favor of these two couples, and State Department guidance is clarified, I'd be a good trooper, acknowledge the new policy and move ahead.
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  #84  
Old 29 January 2018, 06:58 PM
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I don't see anything in the CIS policy that is inconsistent with State's interpretation, and it says they worked out the policy together. Maybe you could point out what you are referring to? (I looked on the CIS website, but I believe I found the relevant info. Your pdf link did not work for me.)
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  #85  
Old 29 January 2018, 08:52 PM
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The .pdf just indicates non-genetic gestational mothers who are also legal mothers can be recognized the same way as genetic mothers. IOW, if these mothers had carried each other's bio fetuses they'd be fine, but as it stands they're still in the same boat. It's a step in the right direction, I suppose, just not far enough.

UL, it's not just the agencies. As you pointed out, the intent of the legislators is also relevant, and ultimately it will be the court's decision that controls. Those are all branches of the US government, and they may turn out to disagree with this interpretation.
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  #86  
Old 29 January 2018, 10:31 PM
UrbanLegends101 UrbanLegends101 is offline
 
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I just clicked on the link in post and it worked.

https://www.uscis.gov/policymanual/U...141028-ART.pdf


uscis.gov/policymanual/Updates/20141028-ART.pdf

You will have to put https://www in front of the second try.
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  #87  
Old 30 January 2018, 12:01 AM
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Originally Posted by Esprise Me View Post
The .pdf just indicates non-genetic gestational mothers who are also legal mothers can be recognized the same way as genetic mothers. IOW, if these mothers had carried each other's bio fetuses they'd be fine, but as it stands they're still in the same boat. It's a step in the right direction, I suppose, just not far enough.
State has the exact same policy. It's why I mentioned, among other things, that if they had each carried the genetic child of the other, both kids would be citizens by birthright.

ETA:. From 7 FAM 1131.4-1 Establishing Blood Relationship:
Quote:
A man has a biological relationship with his child, or a "blood relationship" as required in the current text of INA Section 309(a), when he has a genetic parental relationship to the child. A woman may have a biological relationship with her child through either a genetic parental relationship or a gestational relationship. In other words, 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). (See 7 FAM 1100 Appendix D.)
Also explained at #1 here: https://travel.state.gov/content/tra...cy-Abroad.html

Last edited by erwins; 30 January 2018 at 12:24 AM.
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