E.J.D.-b. v. Dos

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 2020
• Docket: 19-55517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

E. J. D.-B., a Minor, Elad Dvash-Banks as No. 19-55517 the guardian ad litem; ANDREW MASON DVASH-BANKS, D.C. No. 2:18-cv-00523-JFW-JC

Plaintiffs-Appellees,

v. MEMORANDUM*

UNITED STATES DEPARTMENT OF STATE; MICHAEL POMPEO, US Secretary of State Successor Rex W. Tillerson,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Submitted October 7, 2020** Pasadena, California

Before: KLEINFELD, HURWITZ, and BRESS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The sole issue in this case is whether the district court correctly concluded that

E.J. Dvash-Banks (“E.J.”) is a citizen of the United States. Because the district

court’s decision was correct under binding circuit precedent, we affirm.

E.J. was conceived through Assisted Reproductive Technology and born in

Canada. In January 2017, his legal parents, United States citizen Andrew Dvash-

Banks (“Andrew”) and Israeli citizen Elad Dvash-Banks (“Elad”), applied for a

passport for E.J. under 8 U.S.C. § 1401(g), which confers citizenship on “a person

born outside the geographical limits of the United States and its outlying possessions

of parents one of whom is an alien, and the other a citizen of the United States.” The

United States consulate in Ontario, Canada, denied the application because E.J. was

conceived using Elad’s sperm. The district court, however, held that E.J. was a

citizen under this Court’s decisions in Scales v. INS, 232 F.3d 1159 (9th Cir. 2000),

and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), which hold that §

1401(g) does not require a biological relationship between a child and the citizen

parent through whom citizenship is claimed.

The government concedes that Scales and Solis-Espinoza control this case and

has appealed to preserve the argument that those cases were incorrectly decided. As

a three-judge panel, we are bound by Scales and Solis-Espinoza. See Miller v.

Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Because the district court did

2 not err in applying Ninth Circuit law, we affirm.1

AFFIRMED.

1 Appellees’ motion for judicial notice, Dkt. 22, is GRANTED.