Tuesday, June 28, 2016
Law360 reports that the U.S. Supreme Court today agreed to hear an appeal over the grant of citizenship to a man born in the Dominican Republic to an unwed citizen father and noncitizen mother, in a case that deals with a gender discrepancy in immigration law between how citizenship is given to kids born abroad to unwed parents. The justices agreed to take up Lynch v. Morales-Santana, after the Solicitor General sought review and to reverse a Second Circuit decision granting citizenship to a man born in to a noncitizen mother and an unwed citizen father.
The Second Circuit ruling had found that petitioner Luis Ramon Morales‐Santana is a citizen by birth. Although he entered the U.S. as a green card holder in 1975, he was placed in deportation proceedings in 2000 after having been convicted of felonies, according to the Second Circuit decision. The case touches on a gender discrepancy in immigration law between how citizenship is given to children born abroad to parents who aren’t married. The rules make it more difficult for citizen fathers to confer citizenship, compared to citizen mothers. Specifically, under the version of the Immigration and Nationality Act in effect when Morales‐Santana was born, a child born outside the U.S. to an unmarried citizen mother and noncitizen father has citizenship at birth if the mother was present in the U.S. or a territory for a continuous period of at least one year before the child was born, or if the father was present in the U.S. for at least 10 years and at least five after turning 14. The Second Circuit struck down those provisions on equal protections grounds, saying fathers should have the same benefits given to mothers under the statute.
The Second Circuit’s decision conflicted with the Ninth Circuit’s 2008 holding in United States v. Flores‐Villar, which upheld the residence requirements on U.S. citizen fathers’ ability to transmit citizenship to kids born abroad outside of marriage to a noncitizen. The Supreme Court granted certiorari in an appeal of that decision, and reached a 4-4 decision — with Justice Elena Kagan recusing herself.
Morales-Santana has argued the rules were based on “archaic and overbroad stereotypes” about the roles that mothers and fathers have in the lives of children born to unmarried couples. The high court’s decision to hear the case comes after it declined to hear another notable case dealing with citizenship.
The question presented by the SG's petition is whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.