## Facts

- 8 U.S.C. § 1401(g) provides that a person born outside the United States may acquire U.S. citizenship at birth when one parent is a U.S. citizen and the other parent is not.
- Andrew Dvash-Banks was a U.S. citizen, and Elad Dvash-Banks was not a U.S. citizen.
- Their son, E.J. Dvash-Banks, was born in Canada.
- E.J. was conceived through assisted reproductive technology using Elad’s sperm and a donor egg, so E.J. had no genetic relationship to Andrew.
- In January 2017, E.J.’s parents applied for a U.S. passport for E.J. based on citizenship at birth under § 1401(g).
- A U.S. consulate in Ontario denied the passport application because, in the Department of State’s view, § 1401(g) required a biological relationship between E.J. and the U.S.-citizen parent (Andrew).
- E.J. (through his guardian ad litem) and his parents sued the U.S. Department of State and the Secretary of State in federal district court.
- The district court concluded that, under Ninth Circuit precedent interpreting § 1401(g), E.J. was a U.S. citizen at birth despite the lack of a biological relationship to Andrew.
- The Department of State appealed.

## Issues

1. Whether E.J. was a U.S. citizen at birth under 8 U.S.C. § 1401(g) even though he had no biological relationship to the U.S.-citizen parent through whom citizenship was claimed.

## Decision

- The Ninth Circuit affirmed.
- The court held the district court correctly found E.J. is a U.S. citizen under binding Ninth Circuit precedent interpreting § 1401(g).
- The court relied on *Scales v. INS* and *Solis-Espinoza v. Gonzales*, which the panel read as holding that § 1401(g) does not require a biological relationship between the child and the U.S.-citizen parent.
- The government conceded those cases controlled the outcome and stated it appealed to preserve its argument that the earlier decisions were wrongly decided.
- As a three-judge panel, the court stated it was bound by the prior circuit decisions and therefore could not accept the Department’s biological-relationship requirement.

## Legal Principles

- In the Ninth Circuit, published circuit decisions construing 8 U.S.C. § 1401(g) control later cases unless changed by an en banc Ninth Circuit decision or the Supreme Court.
- Under *Scales* and *Solis-Espinoza* as applied by the Ninth Circuit panel here, § 1401(g) does not impose a categorical biological-relationship requirement between the child and the U.S.-citizen parent through whom citizenship is claimed.
- A three-judge Ninth Circuit panel must follow prior published Ninth Circuit precedent that governs the statutory question presented.
- When controlling circuit authority resolves the statutory interpretation question, the court will affirm a district court decision that applies that authority to conclude a person is a U.S. citizen at birth under § 1401(g).

## Conclusion

The Ninth Circuit affirmed the district court’s judgment declaring E.J. a U.S. citizen at birth under 8 U.S.C. § 1401(g), holding that existing Ninth Circuit precedent foreclosed the Department of State’s position that a biological relationship to the U.S.-citizen parent is required for citizenship in these circumstances.


E.J. D.-B. v. U.S. Department of State, 825 F. App’x 479 (2020)