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

NOT FOR PUBLICATION FILED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.
3