His a U.S. citizen — his brother isn’t

NEW YORK DAILY NEWS 

Twins Aiden and Ethan Dvash-Banks are at the center of a lawsuit against the State Department because one has been left without citizenship. (IMMIGRATION EQUALITY)

A Los Angeles gay couple is suing the State Department for granting citizenship to one of their sons while denying it to his twin brother.

Andrew and Elad Dvash-Banks argue one of their Canadian-born sons has been left undocumented because he's not biologically linked to a U.S. citizen.

"How am I going to explain this to him when he grows up?" Elad, who has a U.S. green card because of his marriage to Andrew, says in a video released by Immigration Equality. "It's creating an issue from something that shouldn't be an issue."

The couple accused the State Department of discriminating against their relationship, leaving their one son alienated while his brother has full rights.

The Dvash-Banks family is one of two same-sex, binational couples who started families overseas before the Defense of Marriage Act was struck down in 2015 and later ran into citizenship issues for their children when moving to the U.S.

The couple met 10 years ago in Israel, where Elad grew up.

They got married in Canada in 2010, but decided to move to Los Angeles to be closer to Andrew's family after sons Aiden and Ethan were born in 2016.

The boys were conceived with sperm from Andrew and Elad, using eggs from the same donor, and carried by a surrogate. Both men are named on the boy's birth certificates, according to the lawsuit.

But the U.S. consulate in Toronto began asking a probing line of questions when they planned their stateside move, telling them they needed DNA tests on the boys, the couple claims.

"Everyone stopped what they were doing and started looking at us to answer the questions while we're holding the infants," Andrew, speaking in the video, says of the consulate visit.

When they did move to Los Angeles, Aiden was given full citizenship because he's genetically linked to Andrew. Ethan, meanwhile, could only enter the U.S. through a tourist visa because Elad is his biological father, the suit says.

That visa expired in December, and the couple is currently trying to reapply.

Although both parents were on the boys' birth certificates, the embassy classified the children as being born "out of wedlock," the suit charges.

"Andrew and Elad had planned to keep the genetic identity of their children private so that both children would feel equally connected to each of their parents," the lawsuit says.

"In the hope of ensuring that the U.S. government would recognize their children's citizenship, however, they disclosed the genetic links they had to Ethan and Aiden."

The New York-based Immigration Equality advocacy group helped bring the lawsuit against the State Department, claiming it discriminated against LGBT couples and their children.

"The State Department is refusing to acknowledge the citizenship of children whose parents are same-sex married couples. This policy is not only illegal, it is unconstitutional," Aaron Morris, the couple's lawyer and Immigration Equality executive director, said in a statement.

It also helped bring a similar lawsuit this week on behalf of Allison Blixt and Stefania Zaccari, who are U.S. and Italian citizens, respectively.

They had settled in London because Blixt couldn't support Zaccari's visa under DOMA. They had two sons overseas: Lucas, who was carried by Blixt, and Massi, who was carried by Zaccari.

Similar to the Dvash-Banks suit, they note both parents are on the children's birth certificates.

The State Department, however, didn't recognize their marriage, and Lucas has been denied citizenship, the lawsuit claims.

"The fact that the State Department's policy has led children identified by their birth certificates as boys with the same parents to have different nationalities listed on their passports crystallizes both the indignity and absurdity of the policy's effect," their lawsuit reads.

A State Department representative declined to comment, citing the pending litigation, but pointed to its policy on citizenship.

That rule states: “if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth,” regardless of local laws that may recognize them as legal parents.