Tuesday, August 26, 2014
Derivative Citizenship: What's Marriage, Citizenship, Sex, Sexual Orientation, Race and Class Got to Do with It? by M. Isabel Medina, Loyola University New Orleans College of Law March 23, 2013 28 Georgetown Immigration Law Journal (Spring 2014 Forthcoming)
Abstract: I explore the derivative citizenship statutory framework and its interaction with marital status, citizenship, gender, race, and class as implemented by federal courts. The first section of the paper describes the origins and current statutory and constitutional framework for derivative citizenship. The second section explores contemporary adjudication of derivative citizenship, the operation of marriage, sex, race and class discrimination in the cases, and the legal and moral bankruptcy of the determinations. The third section offers a critique of the doctrinal framework, relying on the work of Ian Haney Lopez, Candice Lewis Bredbenner and other critical race and feminist legal scholars that have traced race and gender bias in citizenship norms and marriage. The conclusion identifies possible reforms. Legal norms concerning marriage and the family have proved resistant to substantive and formal notions of equality. Marriage’s relationship to explicit and implicit gender and racial stereotypes and bias continues, to a degree, today, penalizing couples in traditional marriages who are in “mixed” marriages, same-sex marriages and parents who are not in marriages because the law does not recognize their relationship or because they opt not to be married, whether they live together or apart. Even where the domestic law of the family has been transformed to minimize formal gender and racial bias, the federal law of derivative citizenship has lagged behind, clinging to biased notions of gender, family and marriage in the administrative and judicial implementation of the formal legislative rules provided by Congress to determine who derives citizenship and who does not. The current statutory framework is problematic from an equality perspective, even if formally consistent with current understandings of equal protection law. The current statutory focus on the marital status or citizenship status of the parents should be replaced with a focus on the U.S. citizen parent-child relationship and the statutory requirements simplified to facilitate passage of citizenship from the U.S. citizen parent to children born abroad, regardless of marital status, parent gender, and custodial status. In addition, constitutional protection for parents and children claiming citizenship by descent should be heightened to reflect the importance of the parent’s ability to pass citizenship on to their child to constitutional values of equality and membership. The current system’s reliance on immigration courts and removal proceedings to determine citizenship claims should be abandoned and returned to federal courts. In turn, courts should more rigorously scrutinize citizenship statutes and claims to ensure that the important right of a U.S. citizen parent to pass citizenship on to her or his child born abroad receives protection in accordance with the high value that the United States places on the parent-child relationship and citizenship.
Welcoming a Post-Doma World: Same-Sex Spousal Petitions and Other Post-Windsor Immigration Implications by Benjamin P. Edwards, Michigan State University - Investor Advocacy Clinic 2013 Family Law Quarterly, Vol. 47, No. 2, 2013
Abstract: In this Essay, I explore evolving notions of marriage and their impact on immigration law. In particular, the Supreme Court's decision holding section three of the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor has had profound and immediate effects on the immigration rights of same-sex couples.