The Big Question (#1): Citizen, Or Not?

Ran across an interesting legal case today.  Apparently, the United States District Court for the Northern District of Georgia has ordered the State Department to issue a passport to the daughter of a gay couple (1).  Here's a rundown of the case, as I see it.

(Disclaimer: I am not, nor do I claim to be, any sort of lawyer or legal expert.  Regarding this matter, I am merely an interested and concerned citizen.  If you feel that you have a legal claim, you should contact an experienced legal professional.)

Case Facts:

• Derek Mize & Jonathan Gregg are both US citizens, involved in a "same-sex marriage".
• Daughter Simone Mize-Gregg was born in England to a British surrogate.
• Sometime in 2018, Derek and Jonathan submitted a passport application on their daughter's behalf.  The State Department denied their application.  
• Simone was not born in US, so the 14th Amendment to the Constitution does not apply (United States v Wong Kim Ark, 1898) (2).  
• Biological parent: A woman who gives birth to a child, and/or the birth father of a child (3).  
• Since Simone was not directly born to the couple, they are not her "biological parents" (it would be the woman in England that would be as such, according to definition)
• Simone has no biological connection to the US (she was not born in an American state/territory to a US citizen or national.  Rather, she was born in England, to a non-citizen)

For purposes of birth abroad, who is a US citizen? One who:

• Has "both" parents as US citizens at the time of their birth.
• Has "both" parents as married to one another.
• Has at least one parent who lived in the US prior to the child's birth (4).

The law in question here is the "Immigration and Nationality Act of 1965" (5), which does not specify whether or not "parents" include non-biological parents.  

Now we turn our attention to another legal document, the "Child Citizenship Act of 2000" (6).  

Title I, Section 101, Sub-Section A reads as follows:

"A.  In General.  

  Section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows: ‘

"CHILDREN BORN OUTSIDE THE UNITED STATES AND RESIDING PERMANENTLY IN THE UNITED STATES; CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED"

  Sec. 320.  

   A.  A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

1. At least one parent of the child is a citizen of the United States, whether by birth or naturalization.  
2. The child is under the age of eighteen years.  
3. The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.  

   B.  Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1)." 

Who can become a "naturalized citizen" of the US? Anyone that:

• Is at least eighteen at the time of filing.  
• Is a legal permanent resident of the United States (that is, they have a legally binding place of residence...a "domicile"...within the United States) 
• Has been a legal permanent resident of the United States for at least three years.  

An applicant for naturalized citizenship must also:

• Be a "person of good moral character".
• Pass a test on the subjects of US History and US Government.  
• Have a working knowledge of English (for most) (7).  
• Swear an "Oath of Allegiance" to the United States (during their naturalization ceremony) (7) (8).  

And now, my final points.  

Question 1.  Taking all of the facts into account, is Simone Mize-Gregg (according to law) automatically a US citizen?

 VERDICT: Maybe.  

  It depends on the specific language regarding "parents" in the Immigration and Nationality Act.  If, under the law, a "parent" must be a "biological parent", then Simone is NOT automatically a US citizen...and vice-versa.   

Question 2.  If Simone Mize-Gregg cannot be considered to automatically be considered a US citizen, might she be able to gain citizenship by means of naturalization?

  VERDICT: Not at this time.  

   Simone is about twenty-five months old, having been born in July of 2018.  As such, she has not yet met the eligibility requirement to be at least eighteen at the time of application (she will do so in July of 2036. approximately).  

THE BIG QUESTION: 

Was the US District Court for the Northern District of Georgia correct in ruling that Simone Mize-Gregg must be issued a passport by the State Department?

  VERDICT: "Hung Jury" (unclear).

   The Court's ruling is predicated on the assumption that Simone Mize-Gregg is indeed a US citizen, which itself is uncertain (see question 1).  This is an issue that must be clarified, and perhaps weighed in upon by a higher court.    

(Note: As part of this ruling, the District Court ruled that a citizen child does not necessarily have to have a "biological parent" that is a US citizen or national)   

Sources:

1. Fitzsimons, T., 2020. Court Orders State Dept. To Issue Passport To Gay Couple's Daughter. [online] Yahoo.com. Available at: <https://www.yahoo.com/news/court-orders-state-dept-issue-202021771.html> [Accessed 1 September 2020].

2. "United States V. Wong Kim Ark". En.Wikipedia.Org, 2020, https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark. Accessed 1 Sept 2020.

3. "Birth/Biological Parent". Merriam-Webster Inc., 2020, https://www.merriam-webster.com/dictionary/birth%2Fbiological%20parent. Accessed 1 Sept 2020.

4. "United States Nationality Law". En.Wikipedia.Org, 2020, https://en.wikipedia.org/wiki/United_States_nationality_law#Acquisition_of_citizenship. Accessed 1 Sept 2020.

5. United States, Congress, Immigration And Nationality Act Of 1965. U.S. Government Printing Office, 1965.

6. United States, Congress, Child Citizenship Act Of 2000. U.S. Government Printing Office, 2000.

7. "United States Nationality Law". En.Wikipedia.Org, 2020, https://en.wikipedia.org/wiki/United_States_nationality_law#Eligibility_for_naturalization. Accessed 1 Sept 2020.

8. "Naturalization Oath Of Allegiance To The United States Of America". US Citizenship And Immigration Services, 2020, https://www.uscis.gov/citizenship/learn-about-citizenship/the-naturalization-interview-and-test/naturalization-oath-of-allegiance-to-the-united-states-of-america. Accessed 1 Sept 2020.