Chicago Immigration Lawyer Blog
The Chicago immigration attorneys at Zneimer & Zneimer reviewed today’s United States Supreme Court decision with regard to children born abroad to unwed parents. Prior to today’s decision, the statute provided for different requirements how unwed mothers and unwed fathers can transmit citizenship to a child born abroad. The United States Supreme Court struck down the different requirements on equal protection grounds.
Under the challenged statute, unwed mothers could transmit U.S. citizenship to a child born abroad if the mother has been physically present in the United States or one of the outlying possessions for a continuous period of one year. On the other hand, an unwed father under the law at the time of the Respondent’s birth, could transmit citizenship if the father had been physically present in the United States for ten years, five of which over the age of 14. The father had to meet additional requirements that were not at issue in the case.
The case involved Luis Ramón Morales-Santana, born in Jamaica, who had lived in the United States since he was 13 years old. The U.S. government had placed him in the process of removal from the United States because he had committed certain crimes. The Respondent asserted that the government could not remove him because he was a U.S. citizen at birth. The Respondent claimed to be a U.S. citizen based on the U. S. citizenship of his biological father, José Morales. His father had moved to the Dominican Republic only 20 days before he turned 19, and was 20 days short of the five years residence after the age of 14 requirement at the time, to transmit U.S. citizenship. The father had met all other requirements to transmit citizenship to his son, except the residence requirement. At the time the case made its way up the court system, the father had died and the Supreme Court found that the Respondent has the right to assert the equal protection claim on behalf of his father.
The Respondent moved to reopen the removal proceedings to assert the claim to U.S. citizenship. The Immigration Judge denied the motion, and the Board of Immigration affirmed. The immigration judge denied his claim and ordered the Respondent removed. The Second Circuit Court of Appeals reversed, and held that the different treatment of unwed mothers and fathers violates equal protection. The Second Circuit held that Luis Ramón Morales-Santana derived U.S. citizenship from his father using the requirement for unwed mothers of one year continuous physical residence, instead of ten years, five of which over the age of 14 applicable to unwed fathers.
The government petitioned the United States Supreme Court for certiorari. The U.S. Supreme Court agreed with the Second Circuit that the disparate treatment of unwed mothers and unwed fathers violates equal protection of the U.S. constitution. However, the Supreme Court disagreed that the shorter period should apply. Rather, the Court determined that the longer period should apply to both.
The Court stated:
“Because this Court is not equipped to convert §1409(c)’s exception for unwed U. S.-citizen mothers into the main rule displacing§§1401(a)(7) and 1409(a), it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, §1401(a)(7)’s current requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers. The legislature’s intent, as revealed by the statute at hand, governs the choice between the two remedial alternatives: extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class.
Ordinarily, the preferred rule is to extend favorable treatment. [citations omitted]. Here, however, extension to fathers of §1409(c)’s favorable treatment for mothers would displace Congress’ general rule, the longer physical-presence requirements of §§1401(a)(7) and 1409 applicable to unwed U. S.-citizen fathers and U. S.-citizen parents, male as well as female, married to the child’s alien parent.”
The Court stated “going forward” the unfavorable treatment will apply to both unwed U.S. citizen mothers and unwed U.S. citizen fathers. Under the new Supreme Court’s decision, to derive citizenship both unwed U.S. citizens fathers or unwed U.S. citizen mothers must demonstrate five years of physical presence, two of which over the age of 14.
Because the Court struck the statute as unconstitutional, there is additional issue what happens to the children who already derived citizenship from their unwed mothers, as well as the children who could not derive U.S. citizenship through their unwed fathers prior to today’s decision. The government would not be able to strip the children of unwed mothers from their citizenship, but would the government recognize citizenship of children of the unwed fathers, applying the one year continuous physical residence?
The Case is Sessions v. Morales-Santana, 15-1191 https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf.
This case came out today and this decision will generate a lot of discussions. If you would like to explore your immigration options contact an immigration attorney.