IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JAMES DEREK MIZE and Civil Action No.

JONATHAN DANIEL GREGG,
individually and on behalf of their
minor child, SIMONE C. MIZE-
GREGG,

Plaintiffs,

v.

MICHAEL R. POMPEO, in his official

capacity as Secretary of State, and
THE U.S. DEPARTMENT OF STATE,

Defendants.

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT
1. Plaintiff Simone C. Mize-Gregg (“Simone”) is the infant daughter of

two married U.S. citizens, Plaintiffs James Derek Mize and Jonathan Daniel Gregg.

In almost all cases, the U.S. government will recognize a child born to two married

U.S. citizens as a citizen at birth. But not Simone. Because she is the child of two

men, the U.S. Department of State evaluated Simone’s citizenship under the

standards only applicable to children “born out of wedlock” and refused to recognize

-1-
Simone’s U.S. citizenship. The State Department’s policy of treating children born

to married same-sex couples and one of their legal parents as strangers is wrong and

hurts families. It is also unlawful. The State Department’s unjust policy and practices

should be enjoined because they violate the Immigration and Nationalization Act

(INA), unconstitutionally disregard the dignity and equality of the marriages of

same-sex couples, and unlawfully discriminate against children simply because their

parents are a same-sex couple.

2. Mr. Gregg and Mr. Mize are Simone’s parents. They brought her into

the world via gestational surrogacy using Mr. Gregg’s sperm and an anonymously

donated egg, and she was born in the summer of 2018, during Mr. Gregg and Mr.

Mize’s marriage, in England. The medical staff immediately handed Simone to one

of her fathers, Mr. Mize, and the other, Mr. Gregg, cut the umbilical cord. Simone’s

United Kingdom birth certificate correctly identifies Mr. Mize and Mr. Gregg—and

only Mr. Mize and Mr. Gregg—as her parents.

3. Simone qualified as a U.S. citizen at birth pursuant to Section 301(c) of

the INA, codified at 8 U.S.C. § 1401(c). Under that provision, a person born outside

the United States to two married U.S. citizens, at least one of whom has resided in

the United States at any time, is a national and citizen of the United States at birth.

Mr. Mize was born and raised in the United States. Mr. Gregg was born in London

-2-
to a married U.S. citizen, and—like his daughter—has been a citizen since birth. Mr.

Gregg also resided in the United States prior to Simone’s birth. Because Simone is

the child of two married U.S. citizens who have resided in the United States, she was

a United States citizen at birth.

4. The State Department, however, has wrongly refused to recognize

Simone’s U.S. citizenship. State Department officials at the U.S. Embassy in London

refused to consider Simone’s citizenship under Section 301(c). Instead, the State

Department erroneously applied two sets of more stringent requirements: (i) Section

309 of the INA, codified at 8 U.S.C. § 1409, which applies to the children of

unmarried parents, and (ii) Section 301(g), which applies only if one of the parents

is a noncitizen. In doing so, State Department officials failed to acknowledge the

validity of Mr. Mize and Mr. Gregg’s marriage, deemed Simone to have been “born

out of wedlock,” and treated Mr. Mize as if he were not Simone’s father.

5. This was not an aberration or the unsanctioned conduct of a single

embassy employee. To the contrary, it is State Department policy to disregard the

relationship between a child and his or her non-biological a policy that leads the

State Department to routinely refuse to recognize the lawful marriages of same-sex

couples, and classify their children as non-marital children. A similarly-situated

different-sex couple and their baby would not have been treated the same way.

-3-
 6. Pursuant to agency policy, the State Department applied the

requirements of Sections 309 and 301(g) that govern when an unwed father has a

child with a noncitizen. It then determined that Simone is not a U.S. citizen because

her U.S.-citizen biological parent, Mr. Gregg, had not lived in the United States long

enough prior to Simone’s birth to meet Section 301(g)’s five-year residency

requirement. This was wrong, discriminatory, and a violation of Plaintiffs’ statutory

and constitutional rights.

7. The State Department’s unlawful policy also put the Mize-Gregg

family at real risk. The State Department has denied Simone the rights and privileges

of U.S. citizenship, including most urgently the right to reside permanently in the

United States with her U.S.-citizen parents.

8. The State Department’s policy also stigmatize and demean the Mize-

Gregg family by refusing to recognize and give effect to Mr. Mize and Mr. Gregg’s

marriage, denying the reality of the father-daughter relationship between an infant

and both of her fathers, labeling Simone a non-marital child, and singling the family

out for government-sponsored discrimination. State Department policy unlawfully

denies that the Mize-Gregg family is a family at all.

9. Plaintiffs seek a declaration that Simone has been a U.S. citizen since

birth, an order instructing the State Department to issue her a passport immediately,

-4-
and declaratory and injunctive relief prohibiting the State Department from

discriminating against same-sex couples and their children in violation of the INA

and the United States Constitution.

II. THE PARTIES

10. Plaintiff James Derek Mize is a 38-year-old U.S. citizen who was born

and raised in the Jackson, Mississippi area.

11. Plaintiff Jonathan Daniel Gregg is a 38-year-old U.S. citizen who was

born in London, England. Mr. Gregg’s mother is a U.S. citizen who was born and

raised in New York City, and whose family has been in this country for generations.

In the late 1960s, Mr. Gregg’s mother moved to the United Kingdom, where she met

Mr. Gregg’s father, a U.K. citizen. Mr. Gregg’s parents married in 1978, and Mr.

Gregg was born in 1981. Mr. Gregg and his sister were raised in London, with

frequent trips to the United States to visit family. As the child of a U.S. citizen and

long-time resident who was born during his parents’ marriage, Mr. Gregg has been

a U.S. citizen since birth.

12. Plaintiff Simone C. Mize-Gregg1 is the daughter of Mr. Gregg and Mr.

Mize. Simone was born in 2018 in Huntingdon, a small town in Cambridgeshire,

1
Pursuant to Federal Rule of Civil Procedure 5.2(h), Simone waives the privacy
protections concerning her full name afforded by Federal Rule of Civil Procedure
5.2(a).

-5-
England.

13. Defendant Michael R. Pompeo is named in his official capacity as

Secretary of State. Defendant Pompeo is the head of the U.S. Department of State

and responsible for setting and overseeing implementation of the policies and

procedures employed by the agency and all its various subdivisions. Under Section

104(a) of the INA, the Secretary of State is “charged with the administration and the

enforcement of the provisions of this chapter and all other immigration and

nationality laws relating to . . . the determination of nationality of a person not in the

United States.” 8 U.S.C. § 1101(a). Defendant Pompeo’s address is Department of

State, 2201 C Street NW, Washington, DC 20520.

14. Defendant the U.S. Department of State is an agency of the U.S.

government that is responsible for, among other things, operating U.S. overseas

diplomatic missions and embassies. In particular, the State Department sets the

policies by which U.S. embassy employees determine whether to issue a Consular

Report of Birth Abroad (“CRBA”) or a passport, and whether to recognize a child

of one or more U.S. citizens as a U.S. citizen. The State Department’s address is

2201 C Street NW, Washington, DC 20520.

-6-
III. JURISDICTION AND VENUE

15. This Court has subject matter jurisdiction over this Complaint pursuant

to 28 U.S.C. § 1331 (federal question), 8 U.S.C. § 1503(a) (de novo proceedings for

declaration of United States nationality), and 28 U.S.C. §§ 2201-2202 (declaratory

judgment). This Court also has jurisdiction to review final agency action pursuant to

5 U.S.C. § 702 (Administrative Procedures Act).

16. Venue is proper in the Northern District of Georgia under 28 U.S.C.

§ 1391(e)(1)(C) and 8 U.S.C. § 1503(a) because Plaintiffs reside in this District.

IV. THE STATUTORY SCHEME: BIRTHRIGHT CITIZENSHIP

UNDER THE INA

17. Citizenship in the United States can be acquired through birth or

naturalization. Pursuant to the “Citizenship Clause” of the Fourteenth Amendment,

citizenship is acquired at birth by being born in the United States. Persons born

outside the United States acquire citizenship at birth only as provided by the INA.

Persons who do not acquire citizenship at birth may acquire citizenship only through

naturalization.

18. Section 301 of the INA sets out the categories of persons who “shall be

nationals and citizens of the United States at birth.” Section 301 has long been

recognized as applicable to any person whose parents were lawfully married when

he or she was born.

-7-
 19. As relevant here, under Section 301(c), a baby born abroad to married

parents is a U.S. citizen at birth when both parents are U.S. citizens and one of them

has resided in the U.S. at any point prior to the baby’s birth. See 8 U.S.C. § 1401(c)

(providing for the citizenship at birth of “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”).

20. Section 301 does not require a biological relationship between the child

and both of his or her married parents. The INA does not expressly define “parents”

or “born . . . of parents” as those terms are used in Section 301. Rather, it

incorporates the fundamental common law principle that a child born to married

parents is presumed to be a marital child. See Jaen v. Sessions, 899 F.3d 182, 186

(2d Cir. 2018) (under Section 301, “a child born into a lawful marriage is the lawful

child of those parents, regardless of the existence or nonexistence of any biological

link”); Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1093 (9th Cir. 2005) (the INA

does “not require a blood relationship for citizenship, other than the requirement

under [8 U.S.C.] § 1409 applicable only to children born out of wedlock”); Scales v.

INS, 232 F.3d 1159, 1166 (9th Cir. 2000) (“A straightforward reading of [8 U.S.C.]

§ 1401 indicates, however, that there is no requirement of a blood relationship.”);

-8-
Dvash-Banks v. Pompeo, No. 18-523, 2019 WL 911799, * 7 (C.D. Cal. Feb. 21,

2019) (“Section 301 does not require a person born during their parents’ marriage to

demonstrate a biological relationship with both of their married parents”), appeal

docketed May 7, 2019, No. 19-55577 (9th Cir.).

21. In contrast to Section 301, Section 309 sets forth very different

requirements for a child “born out of wedlock” to be a citizen at birth. The child of

an unwed father is a U.S. citizen at birth only if he or she can satisfy the several

requirements of Section 309(a) and, as applicable, the additional requirements of

Section 301(c), (d), (e) or (g). The first requirement of Section 309(a) is that “a blood

relationship between the person and the father is established by clear and convincing

evidence.” 8 U.S.C. § 1401(a)(1).

22. For a baby born abroad to an unwed U.S. citizen parent and a non-

citizen parent, Section 309 also requires the child to meet the requirement of Section

301(g) that the citizen parent was physically present in the U.S. for at least five years

prior to the baby’s birth (at least two of which must be after the parent reached the

age of fourteen).

-9-
V. THE STATE DEPARTMENT’S SYSTEMATIC
MISCLASSIFICATION OF CHILDREN BORN TO MARRIED
SAME-SEX COUPLES AS “BORN OUT OF WEDLOCK”

23. Chapter 8 of the State Department’s Foreign Affairs Manual (“FAM”)

is entitled “Passports and Consular Reports of Birth Abroad,” and sets out State

Department policy concerning the citizenship at birth of a person born outside the

United States, and the circumstances under which it will issue a CRBA indicating

that a person born abroad is a U.S. citizen.

24. The State Department describes the FAM and the associated Foreign

Affairs Handbooks (“FAHs”) as

a single, comprehensive, and authoritative source for the

Department’s organization structures, policies, and
procedures that govern the operations of the State
Department, the Foreign Service and, when applicable,
other federal agencies. The FAM (generally policy) and
the FAHs (generally procedures) together convey codified
information to Department staff and contractors so they
can carry out their responsibilities in accordance with
statutory, executive and Department mandates.

See fam.state.gov (last visited July 22, 2019).

25. The FAM sets out State Department policies and procedures, but is not

the product of notice-and-comment rulemaking, congressional action, or formal

adjudication.

-10-
 26. According to the State Department, “If the U.S. embassy or consulate

determines that the child acquired U.S. citizenship at birth, a consular officer will

approve the CRBA application and the Department of State will issue a CRBA . . . in

the child’s name. According to U.S. law, a CRBA is proof of U.S. citizenship[.]”

U.S. State Dep’t., Birth of U.S. Citizens Abroad,

https://travel.state.gov/content/travel/en/international-travel/while-abroad/birth-

abroad.html (last visited July 22, 2019).

27. Section 301 of the INA—unlike Section 309—does not require a

biological or “blood relationship” between a child and both of his or her parents.

Contrary to the plain language of the statute, however, the State Department has

adopted a policy of requiring a “biological” relationship between both married

parents and their child in order for the child’s eligibility for citizenship to be

evaluated under Section 301. In particular, the FAM defines being born “in wedlock”

to mean that “the child’s biological parents were married to each other at the time of

the birth of the child.” 8 FAM § 304.1-2.

28. In keeping with this definition, it is State Department policy to evaluate

whether a child is a U.S. citizen under Section 301 only if the child has a “biological”

relationship with both married parents, and under Section 309 if the child does not

have a “biological” relationship with both married parents. The State Department

-11-
deems a man to have a “biological” relationship with his child only if he is the child’s

genetic father. 8 FAM § 301.4-1(D)(1)(c).

29. While it is the State Department’s stated policy that “[c]hildren born in

wedlock are generally presumed to be the issue of that marriage,” 8 FAM § 301.4-

1(D)(1)(d), in practice, only the children of different-sex couples benefit from that

presumption due to the State Department’s discriminatory policy and practices. The

reality is that the State Department does not apply this established presumption to

the children of married same-sex couples.

30. The State Department does not generally require specific evidence

documenting a biological relationship between parents and their children. Rather,

State Department policy expressly leaves it up to the subjective judgment of consular

officials to determine whether and when “doubt arises that the U.S. citizen ‘parent’

is biologically related to the child.” 8 FAM § 301.4-1(D)(1)(d).

31. On information and belief, State Department officials are highly

unlikely to ask different-sex parents who are identified as legal parents (e.g., on a

child’s birth certificate) if their child is, in fact, biologically related to both legal

parents. In contrast, same-sex parents will always trigger an investigation, and

consular officials routinely ask same-sex parents for specific evidence of a biological

tie and/or about the use of assisted reproductive technology.

-12-
 32. On information and belief, the children of married different-sex parents

are not routinely classified as non-marital children and subjected to the citizenship

requirements of Section 309, even when those children are not, in fact, biologically

related to both parents.

33. The State Department’s policy of requiring a “biological” relationship

between a child and both of his or her married parents misclassifies children born to

married same-sex couples as “born out of wedlock.” This policy categorically

excludes the children of same-sex couples from the marital presumption embodied

in Section 301. The State Department thus disregards the parents’ valid marriages,

ignores the legal and parental rights of non-biological parents, demeans the

relationship between the child and his or her non-biological parent, and destabilizes

families. It also disenfranchises U.S. citizen children of birthright citizenship.

VI. CONSTITUTIONAL RIGHTS OF SAME-SEX COUPLES AND

THEIR CHILDREN

34. As the Supreme Court has recognized, excluding same-sex couples and

their children from the rights and protections associated with marriage is

unconstitutional. The Court’s precedents have made clear that constitutional

guarantees of liberty and equality protect same-sex couples as they make choices

central to individual dignity and autonomy, including the choice of an intimate life

partner, the choice to marry, and the choice to bring children into their family.

-13-
 35. In United States v. Windsor, 570 U.S. 744 (2013), the Supreme Court

recognized that withholding spousal protections from married same-sex couples

violated their equal protection and due process rights as guaranteed by the Fifth

Amendment. The Constitution mandates that the federal government respect the

equal dignity of the marriages of same-sex couples and extend to them equal

treatment and recognition across the full range of federal programs and protections.

In addition to infringing the constitutional rights of adults, denying federal marital

protections to the families formed by same-sex couples humiliates their children,

“mak[ing] it even more difficult for the children to understand the integrity and

closeness of their own family and its concord with other families in their community

and in their daily lives.” Windsor, 570 U.S. at 772.

36. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court

struck down state laws barring same-sex couples from marrying and having their

marriages equally recognized because such laws violated their equal protection and

due process rights as guaranteed by the Fourteenth Amendment. Embodied within

these rights are protections for choices central to self-definition about marriage,

intimacy, association, and family integrity. Obergefell, 135 S. Ct. at 2599-2601.

Excluding same-sex couples from marriage and the attendant protections not only

harms the couples, but also hurts and humiliates their children, denying them “the

-14-
recognition, stability, and predictability marriage offers,” and subjecting children to

“the stigma of knowing their families are somehow lesser.” Id. at 2600.

37. In Pavan v. Smith, 137 S. Ct. 2075 (2017), the Court reiterated that

married same-sex couples must receive the same “constellation of benefits . . . linked

to marriage,” as married different-sex couples. Those benefits include the right to be

recognized as the parents of a child born during their marriage on the same terms as

married different-sex couples, regardless of whether only one of the parents has a

biological connection to the child.

38. Same-sex spouses and their children are also equally protected in their

rights to family privacy, integrity, and association. Decisions about whether and how

to bring children into a family, choices about how to raise them, and the right to

secure parent-child relationships are fundamental and constitutionally protected.

VII. THE MIZE-GREGG FAMILY

39. Mr. Mize and Mr. Gregg met in 2014 in New York City, where Mr.

Mize was living at the time and Mr. Gregg was visiting. After several months of

dating, Mr. Gregg made arrangements to transfer from London to his employer’s

New York offices, and moved to the United States in November 2014.

40. Mr. Mize and Mr. Gregg discussed their mutual desire to have children

early in their relationship, and when they got engaged they did so with the hope and

-15-
understanding that children would be part of their future together. Mr. Mize and Mr.

Gregg married on May 30, 2015 in New York City.

41. When Mr. Mize and Mr. Gregg decided to move forward with creating

their family, they determined to try assisted reproductive technology (“ART”) to

bring their baby into the world. The couple decided to use eggs provided by an

anonymous donor and to accept the offer of a close friend from London who

volunteered to be their gestational surrogate. All parties agreed that Mr. Mize and

Mr. Gregg would be the intended and only parents of any child born via gestational

surrogacy.

42. Indifferent to which parent would or would not have a biological

relationship to their child, the couple had eggs fertilized with each of their sperm,

and decided to take turns with the implantation of embryos created with their

respective genetic material. In the spring of 2017, an embryo created with Mr.

Mize’s genetic material was implanted in the gestational surrogate, but she did not

become pregnant. In October 2017, the couple tried again and an embryo created

with Mr. Gregg’s genetic material was implanted in the gestational surrogate. This

time the surrogate became pregnant with Mr. Mize and Mr. Gregg’s daughter

Simone. The couple were thrilled.

-16-
 43. When the surrogate was approximately two months pregnant, Mr. Mize

began making regular extended trips to the U.K. to be with and care for the

gestational surrogate. Mr. Mize was present in the U.K. for the entire third trimester

of the pregnancy.

44. Due to work commitments, Mr. Gregg was primarily in the United

States during the pregnancy, but was able to make several short trips to the U.K.

during that time. To ensure that he would be present for Simone’s birth, Mr. Gregg

was present in the U.K. for the last five weeks of the pregnancy.

45. Simone was born in the summer of 2018, with both Mr. Mize and Mr.

Gregg present in the delivery room. Mr. Gregg cut the umbilical cord while Mr.

Mize held their daughter. The couple named their newborn, including giving her the

hyphenated last name Mize-Gregg to reflect their status as a family, and her status

as the child of both Mr. Mize and Mr. Gregg. All three family members and the

gestational surrogate stayed in the hospital for three days and two nights, with Mr.

Mize and Mr. Gregg caring for Simone and getting to know their daughter. When

they left the hospital, Mr. Gregg and Mr. Mize drove the gestational surrogate to her

home, and then brought Simone home to their own residence.

46. In August 2018, Mr. Gregg and Mr. Mize applied for a Parental Order

under Section 54 of the U.K.’s Human Fertilisation and Embryology Act of 2008 to

-17-
reflect their status as Simone’s parents. Under U.K. law, such an application cannot

be filed until six weeks after the birth of the child. Mr. Gregg and Mr. Mize filed the

application six weeks and one day after Simone’s birth.2

47. In September 2018, Mr. Gregg and Mr. Mize returned to the United

States with Simone. The family currently lives in Decatur, Georgia.

48. On March 21, 2019 the Central London Family Court issued a Parental

Order declaring “that Simone [C.] Mize-Gregg, who was born on [], 2018 is to be

treated in law as the child of the parties to a marriage, Jonathan Daniel Gregg and

James Derek Mize.”

49. On April 17, 2019, the General Registrar Office issued a birth

certificate identifying Mr. Mize and Mr. Gregg as Simone’s only parents.

50. Simone is the marital child of Mr. Gregg and Mr. Mize.

51. On or about March 26, 2019, Mr. Mize took Simone to a local Social

Security Administration office to apply for a Social Security card. Mr. Mize was

very surprised and disappointed when the staff declined to issue Simone a Social

Security number, stated that additional evidence of Simone’s citizenship was

2
Plaintiffs reserve the right to rely on U.K. law as it pertains to Simone’s parentage.
To the extent such notice is necessary, this statement constitutes the notice
contemplated by Federal Rule of Civil Procedure 44.1.

-18-
required, and advised Mr. Mize to return to the U.S. Embassy in London to establish

Simone’s citizenship.

52. Worried, Mr. Mize and Mr. Gregg immediately arranged to travel to

London with Simone. On April 24, 2019, the family appeared at the U.S. Embassy

in London to apply for a CRBA and passport. At the U.S. Embassy, the family waited

until they were called to a window where they presented Simone’s CRBA

application (including both men’s U.S. passports, and a copy of their marriage

certificate) and passport application to an embassy staff person. The staff person

went into a back room for some time before returning to ask who was Simone’s

father. Mr. Mize and Mr. Gregg explained that they were each Simone’s father.

When the staff person pressed for information on which father’s sperm had been

used, Mr. Mize and Mr. Gregg described the ART process they used to create their

family. The clerk asked the family to wait.

53. Over the next several hours, Mr. Mize and Mr. Gregg waited with their

daughter and watched while numerous different-sex couples were called to a

window, had their applications promptly processed, and received a CRBA and/or

passport confirming their child’s U.S. citizenship. Perceiving that his family was

being treated differently than other families, Mr. Mize spent part of his time in the

waiting room investigating the law of citizenship, and learned that a federal court

-19-
had recently ruled that the citizenship of a child born via surrogacy to a married

same-sex couple, only one of whom was a U.S. citizen, was entitled to citizenship

at birth. See Dvash-Banks v. Pompeo, No. 18-523, 2019 WL 911799 (C.D. Cal. Feb.

21, 2019), appeal docketed May 7, 2019, No. 19-55517 (9th Cir.).

54. After approximately three hours of waiting, embassy staff called the

family to another window and informed them that Simone’s CRBA and passport

applications were denied. Mr. Mize and Mr. Gregg asked to speak to a supervisor.

The head of the Passport and Citizenship Unit confirmed that embassy staff, in

consultation with other State Department personnel “up the chain,” had determined

that Simone did not qualify for citizenship at birth, and provided a letter confirming

denial of Simone’s CRBA application. See Exhibit A. As the letter makes clear, the

U.S. Embassy evaluated the application under the “born out of wedlock”

requirements of Sections 309 and 301(g), wrongly deemed Mr. Mize not to be

Simone’s parent because they are not biologically related, and denied the CRBA

application on the ground that “the biological U.S. citizen parent [i.e., Mr. Gregg]

was not physically present in the United States for five years prior to the child’s

birth.”

55. Deeply distressed, Mr. Mize pointed out the Dvash-Banks case and its

conclusion that the citizenship of a child born to a married same-sex couple was

-20-
properly evaluated under the INA provisions applicable to children of a married

couple. State Department staff stated they were aware of the case, but asserted that

the case was “in process” and that “until the rules change” the State Department’s

decision regarding Simone’s citizenship would stand.

56. The State Department’s denial of Simone’s CRBA and passport

applications was erroneous, violated Plaintiffs’ due process and equal protection

rights, and was based on an arbitrary, capricious, and legally incorrect reading of the

INA.

57. Mr. Mize and Mr. Gregg are Simone’s parents in all relevant respects.

Mr. Mize and Mr. Gregg are Simone’s legal parents, and the parents listed on her

birth certificate. They made the decision to have children together, decided together

how they would create their family, and make no distinction in their family life based

on which parent has a biological connection to Simone. Mr. Mize and Mr. Gregg are

raising their daughter together. Both are equally Simone’s fathers.

58. No other person is Simone’s parent. No other person has ever acted as

a parent to Simone, or made a claim to be her parent. The anonymous egg donor is

not Simone’s parent, has not claimed to be Simone’s parent, and has never acted as

Simone’s parent. The gestational surrogate and her husband are not Simone’s

parents, have never claimed to be Simone’s parents, and have never acted as

-21-
Simone’s parents. Mr. Mize and Mr. Gregg are Simone’s only parents, and have

been from the moment of her birth.

59. The State Department’s refusal to recognize Simone’s birth citizenship

significantly harms her and her parents. Defendants have denied Simone the rights

and privileges of U.S. citizenship, including the right to permanently reside in the

United States, the right to a passport, the protection of the United States government,

and the right to run for political office.

60. Moreover, the State Department has subjected the entire Mize-Gregg

family to the indignity and stigma of unequal treatment by the government and to

the infringement of their liberty interests in their familial status and their spousal and

parent-child relationships. Defendants’ refusal to recognize Simone’s U.S.

citizenship under Section 301 repeats the discrimination struck down in Windsor and

Obergefell, and relegates Simone and other children like her “through no fault of

their own to a more difficult and uncertain family life.” Obergefell, 135 S. Ct. at

2600.

61. The State Department’s policy and practice of excluding the children

of married same-sex parents from the right of birth citizenship set forth in Section

301 is contrary to the INA, is arbitrary and capricious, and violates the statutory and

constitutional rights of children and parents.

-22-
 COUNT I

DECLARATION OF CITIZENSHIP UNDER THE INA

(By Plaintiff Simone C. Mize-Gregg)

62. Plaintiffs repeat, re-allege, and incorporate by reference the allegations

of all preceding paragraphs of this Complaint.

63. 8 U.S.C. § 1503(a) empowers this Court to make a de novo judgment

as to Simone’s citizenship.

64. Pursuant to Section 301(c) of the INA, Simone is a national and citizen

of the United States, and has been since birth, because she is the child of parents who

were married to each other at the time of her birth, both of whom are citizens of the

United States, and both of whom had a residence in the United States prior to

Simone’s birth.

65. The INA does not require that a child’s married legal parents also both

be the child’s biological parents for the child to be deemed born in wedlock for

purposes of Section 301.

66. In contrast, Section 309 of the INA pertains to “Children born out of

wedlock,” and does require “a blood relationship” between a child and his or her

U.S. citizen father to confer citizenship on a child born abroad.

67. Section 309 of the INA is inapplicable to Simone’s citizenship claim

because she was born to married parents, and is not a child “born out of wedlock.”

-23-
 68. Section 301(g) of the INA is inapplicable to Simone’s citizenship claim

because, in addition to being the child of married parents, she is not “a person

born . . . of parents one of whom is an alien, and the other a citizen of the United

States.”

69. Simone therefore seeks a declaration pursuant to 8 U.S.C. § 1503(a)

that she is a national and citizen of the United States who acquired citizenship at

birth by operation of Section 301(c) of the INA, 8 U.S.C. § 1401(c).

COUNT II

VIOLATION OF DUE PROCESS

(By All Plaintiffs)

70. Plaintiffs repeat, re-allege, and incorporate by reference the allegations

of all preceding paragraphs of this Complaint.

71. The Due Process Clause of the Fifth Amendment prohibits the federal

government from depriving persons of their liberty without due process of law.

72. Plaintiffs have a protected liberty interest in their family privacy,

integrity, and association, including the fundamental right to security in their parent-

child bonds.

73. Plaintiffs Mize and Gregg’s rights of procreation and child rearing are

intertwined with their fundamental right to marry.

-24-
 74. Mr. Mize and Mr. Gregg have a protected liberty interest in their

parental autonomy, including the fundamental right to make decisions about how to

bring children into their family and concerning the care, custody, and control of their

child, Simone.

75. In evaluating Simone’s citizenship under Sections 309 and 301(g), not

Section 301(c), Defendants unlawfully refused to recognize and give effect to Mr.

Mize and Mr. Gregg’s lawful marriage, as well as unlawfully interfered with Mr.

Mize and Mr. Gregg’s decisional privacy as it pertains to their right to form a family

and parent children.

76. Defendants’ refusal to recognize and give effect to Mr. Mize and Mr.

Gregg’s marriage violates their Due Process rights under the Fifth Amendment.

77. The right to marry is a “central part of the liberty protected by the Due

Process Clause,” as are the “constellation of benefits” linked to that right,

Obergefell, 135 S. Ct. at 2600, 2601, including the ability to confer citizenship status

on a child born abroad.

78. Defendants’ policy and practice of routinely refusing to recognize and

give effect to the marriages of same-sex couples, and thereby excluding the children

of those same-sex spouses from the scope of Section 301, violates the Fifth

Amendment.

-25-
 79. Defendants have wrongfully deprived Mr. Mize and Mr. Gregg of their

right to confer citizenship at birth, and deprived Simone of her right to obtain U.S.

citizenship at birth under Section 301. In doing so, Defendants have

unconstitutionally infringed on Plaintiffs’ protected liberty interests.

80. There is no rational, legitimate, or substantial government interest

served by denying the children of married same-sex couples citizenship at birth. Nor

is there any rational, legitimate, or substantial government interest served by denying

U.S. citizens married to same-sex spouses the right to confer citizenship on children

born abroad during their marriage. There is no justification—let alone a compelling

one—for denying Simone U.S. citizenship.

81. As a result of Defendants’ discriminatory and unlawful policy and

practices, Plaintiffs have suffered injuries to their constitutional rights under the

Fifth Amendment, and will suffer further irreparable harm if the State Department’s

policy and practices are not declared unconstitutional and enjoined.

COUNT III

VIOLATION OF EQUAL PROTECTION

(By All Plaintiffs)

82. Plaintiffs repeat, re-allege, and incorporate by reference the allegations

of all preceding paragraphs of this Complaint.

-26-
 83. The Due Process Clause of the Fifth Amendment prohibits the federal

government from denying persons the equal protection of its laws.

84. Under Defendants’ policy, children born abroad to same-sex couples

are routinely deemed to be “born out of wedlock,” even if the child’s parents are

married to each other and are the sole individuals identified as parents on the child’s

birth certificate. Defendants’ policy and practices discriminatorily refuse to

recognize the birthright citizenship of such children under Section 301, and

inappropriately subject them to the inapplicable requirements for U.S. citizenship

found in Section 309.

85. The same is not true for the children of different-sex couples. On

information and belief, the children of married different-sex parents are not routinely

classified as non-marital children and subjected to the citizenship requirements of

Section 309, even when those children are not, in fact, biologically related to both

parents.

86. Defendants’ policy and practices are discriminatory and violate

Plaintiffs’ Fifth Amendment Equal Protection rights by refusing to recognize the

legal status of Plaintiffs’ family, deeming Simone to be a non-marital child,

penalizing Simone and her parents based on the circumstances of her birth, and by

subjecting each member of the Mize-Gregg family to disparate and disfavored

-27-
treatment not experienced by similarly situated different-sex couples and their

children.

87. Defendants discriminated against Plaintiffs Mize and Gregg on the

bases of sexual orientation and sex by excluding them from the marital protections

of Section 301 that would allow them to confer citizenship status on a child born

abroad and treating them differently from married different-sex couples. Defendants

discriminated against Defendants Mize and Gregg by subjecting them to different

and unfavorable treatment based on their exercising their fundamental right to marry.

88. Defendants’ denial of citizenship at birth under Section 301 to children

like Simone born to same-sex spouses discriminates against them because of the

circumstances of their birth and because of their parents’ sexual orientation, sex,

and/or status as a same-sex married couple.

89. There is no rational, legitimate, substantial, or compelling government

interest served by declaring Simone and other children of married same-sex couples

to be non-marital children, and denying those children access to citizenship at birth

pursuant to Section 301 of the INA.

90. As a result of Defendants’ unconstitutional policy and practices,

Plaintiffs have suffered injuries to their constitutional rights under the Fifth

-28-
Amendment, and will suffer further irreparable harm if Defendant’s policy and

practices are not declared unconstitutional and enjoined.

COUNT IV

ADMINISTRATIVE PROCEDURES ACT

(By All Plaintiffs)

91. Plaintiffs repeat, re-allege, and incorporate by reference the allegations

of all preceding paragraphs of this Complaint.

92. Plaintiffs have suffered and continued to suffer a “legal wrong because

of agency action,” 5 U.S.C. § 702, as a result of the U.S. Embassy’s erroneous

finding that Simone is not a U.S. citizen and its related decision to deny the CRBA

and passport applications submitted on Simone’s behalf.

93. Under the Administrative Procedures Act, “final agency action for

which there is no other adequate remedy in court [is] subject to judicial review.”

5 U.S.C. § 704. The reviewing court “shall…hold unlawful and set aside agency

action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (B) contrary to constitutional

right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction,

authority or limitations, or short of statutory right[.]” 5 U.S.C. § 706(2).

94. The Administrative Procedures Act also provides that a reviewing court

may “compel agency action unlawfully withheld or unreasonably delayed.” 8 U.S.C.

-29-
§ 706(1). Relief under § 706(1) is available where “an agency failed to take a discrete

agency action that it is required to take.” Norton v. Southern Utah Wilderness

Alliance, 542 U.S. 55, 64 (2004).

95. Plaintiffs have exhausted all required administrative remedies, and

have no adequate remedy at law.

96. Defendants’ interpretation of Sections 301 and 309, as embodied in the

Foreign Affairs Manual, conflicts with the clear language and intent of the INA. The

relevant provisions of the FAM ignore contrary, directly applicable rulings by the

Second and Ninth Circuits. Defendants’ interpretation of Sections 301 and 309,

published without any notice or public comment, is arbitrary, capricious, and not in

accordance with the INA.

97. Defendants’ exclusion of Simone and other children born abroad to

married same-sex couples from the category of children who qualify for citizenship

at birth is arbitrary, lacks a rational basis, and is contrary to law. Similarly,

Defendants’ determination that Simone and other children of married same-sex

couples are “born out of wedlock” is arbitrary, lacks a rational basis, and is contrary

to law.

98. Congress has not delegated to Defendants, and Defendants therefore

lack, any authority to deny citizenship to Simone.

-30-
 99. The State Department has acted by unconstitutional regulatory fiat to

routinely refuse to recognize the birthright citizenship of the children of married

same-sex couples. This policy illegally excludes those families based on protected

personal characteristics. The State Department has thus stigmatized and denigrated

children of same-sex parents and their parents, including Plaintiffs.

100. No provision of law purports to authorize such authority by the State

Department to impinge on Plaintiffs’ personal freedoms, nor could any law do so

constitutionally.

101. Plaintiffs have suffered a legal wrong and have been adversely affected

and aggrieved by the State Department’s arbitrary and capricious conduct which is

contrary to law and in excess of its authority delegated by Congress. Defendants’

agency action must therefore be set aside and permanently enjoined.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Issue a judgment declaring that Simone C. Mize-Gregg is a national and

citizen of the United States who acquired citizenship at birth by operation of Section

301(c) of the Immigration and Nationality Act, 8 U.S.C. § 1401(c);

B. Order Defendants to immediately issue Simone C. Mize-Gregg a U.S.

passport;

-31-
 C. Issue a judgment declaring the State Department’s policy and practice

of classifying the children of married same-sex couples as “born out of wedlock,”

and the State Department’s consequent refusal to recognize Simone’s citizenship

status on that basis, unconstitutional and a violation of the INA, both on its face and

as applied to Plaintiffs;

D. Permanently enjoin Defendants from continuing to classify the children

of married same-sex couples as children “born out of wedlock,” and denying the

children of married same-sex couples the right to acquire citizenship at birth

pursuant to Section 301 on that basis;

E. Award Plaintiffs their costs and reasonable attorneys’ fees in this action

as provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other

statutes; and

F. Grant such other and further relief as the Court deems equitable and

just.

-32-
Dated: July 23, 2019 Respectfully submitted,

By: /s/ Tara Borelli

Susan Baker Manning* Tara Borelli
Eleanor Pelta* Attorney Bar No. 265084
MORGAN LEWIS & BOCKIUS LLP LAMBDA LEGAL DEFENSE
1111 Pennsylvania Avenue, NW AND EDUCATION FUND, INC.
Washington, DC 20004 Southern Regional Office
Telephone: (202) 739-3000 730 Peachtree Street NE, Suite 640
[email protected] Atlanta, Georgia 30308
[email protected] Telephone: (404) 897-1880
[email protected]
John A. Polito*
Christie P. Bahna* Karen Loewy*
Charis A.M. Redmond* Omar Gonzalez-Pagan*
MORGAN LEWIS & BOCKIUS LLP LAMBDA LEGAL DEFENSE
One Market, Spear Street Tower AND EDUCATION FUND, INC.
San Francisco, California 94105 120 Wall Street, 19th Floor
Telephone: (415) 442-1000 New York, New York 10005
[email protected] Telephone: (212) 809-8585
[email protected] Facsimile: (212) 809-0055
[email protected] [email protected]
[email protected]
Jacquelynne M. Hamilton*
MORGAN LEWIS & BOCKIUS LLP Aaron C. Morris*
1701 Market Street IMMIGRATION EQUALITY
Philadelphia, Pennsylvania 19103 40 Exchange Place, Suite 1300
Telephone: (215) 963-5000 New York, New York 10005-2744
[email protected] Telephone: (212) 714-2904
[email protected]

Attorneys for Plaintiffs

* Motions for admission pro hac vice forthcoming

-33-