When a child grows up in the United States, raised here by an American parent and an American grandparent, most of us would assume that the child is a U.S. citizen, or is at least entitled to claim citizenship without much difficulty.
But we could easily be wrong, particularly if the child’s father happened to be the custodial parent.
Ruben Flores-Villar grew up in San Diego, where he was raised by his father and his paternal grandmother, both of whom were U.S. citizens. But when he was convicted on a marijuana-related charge, Flores-Villar was deported to Mexico, his birthplace. A federal court judge, later affirmed by the Ninth Circuit Court of Appeals, ruled that the law neither gave American citizenship to the young man automatically, nor entitled him to claim it.
The Supreme Court deadlocked 4-4, allowing the decision to stand after Justice Elena Kagan recused herself. Until Congress acts or the courts revisit the issue, foreign-born offspring of American fathers will continue to receive different treatment under federal immigration law than the children of American mothers.
Under the law, the child of a female U.S. citizen is automatically a citizen, as long as the mother has lived in the U.S. continuously for a year at some point. For a father to transmit citizenship under similar circumstances, however, he must meet more stringent requirements. At the time of Flores-Villar’s birth, the law required a father to have lived in the U.S. for 10 years, at least five of which were required to have been after his fourteenth birthday. An amended version of the law, passed in 1986, reduces the residency requirement for fathers to five years in total, including at least two after the age of 14. Fathers, but not mothers, must also make a declaration acknowledging their paternity.
Flores-Villar was born in Tijuana, Mexico. His parents were not married and his mother was Mexican. But Flores-Villar’s father had lived in the U.S. for 10 years and legally acknowledged his paternity. Unfortunately, Flores-Villar’s father was 16 when his son was born, and so he had not lived in the U.S., or indeed anywhere else, for five years after turning 14. The law, as it stood then, made it physically impossible for men under 19 to meet the requirements to transmit citizenship. The current version of the law has the same effect for men under 16.
Flores-Villar argued that the different requirements for men and women violate the Constitution’s equal protection requirements. The Ninth Circuit disagreed, stating that there are substantial governmental reasons for limiting the transmission of citizenship and for limiting it more in the case of fathers than in the case of mothers.
The limitations are justified, according to the court, because they ensure that foreign-born children without any strong connection to the U.S. do not automatically become citizens at birth.
The residency requirements, including the provisions requiring men to show two or five years of residence after the age of 14, ensure that the parent involved has a genuine connection to the U.S. to pass on to the child. Defending the requirement for residency after the age of 14, the court wrote, “It is not irrational to believe that a United States citizen father who has spent at least five years in residence during his teenage years would have more of a connection with this country to pass on than, say, a father who lived in the United States between the ages of one and ten.”
The acknowledgment requirement, meanwhile, ensures that the child has a real connection to the citizen parent. The gender difference here is justified, the court said, by the fact that mothers are, by biological necessity, aware of their children’s existence and are present at their births, while fathers are not. As a result, “there is no assurance that the father and his biological child will ever meet, or have the kind of contact from which there is a chance for a meaningful relationship to develop.” The acknowledgment requirement was upheld by the Supreme Court in the earlier case of Nguyen v. INS.
The court suggested that the same strict residency requirements ideally would apply regardless of the gender of the parent. However, the court said, while making sure that citizen children have a connection to the U.S. is important, it is even more important to avoid the risk of children being born with no apparent citizenship, and for that purpose, the residency requirement must be relaxed for mothers.
While the U.S. automatically confers citizenship on any child born here, regardless of the parents’ nationalities, many other countries do not. Therefore, in those countries, children who cannot acquire citizenship from one of their parents are left stateless, unable to claim the privileges of citizenship anywhere. Since a father’s link to his children is less apparent than a mother’s, a child’s citizenship is more likely to be based on his or her mother’s nationality. Because of this, the court said, it is imperative that American women living abroad are able to pass on their citizenship, even if that means subjecting them to less stringent residency requirements than apply to men.
The Ninth Circuit asserted, at each step of its argument, that it applied a standard of rationality. But the result, in which a male U.S. citizen who is under 16 can end up with no way of making his child a citizen of his own country, is clearly not rational. This irrationality stems from two key failings in the Ninth Circuit decision.
First, the court failed to truly address in any meaningful way the problem raised by the requirement of residency in the U.S. after the age of 14. The law’s seemingly unintended effect of completely barring some men from transmitting their citizenship does not serve any reasonable governmental purpose that might justify its discriminatory effect. The court treats the problems of younger men under the law as a simple side effect, unfortunate but necessary to achieve the goal of ensuring that only parents with a strong link to the U.S. can transmit citizenship. That purpose, however, could easily be served by a law that instead required a set number of years of residence in the U.S. either after the age of 14 or within the past 10 years. That simple provision would, for example, allow a 15-year-old who lived in the U.S. up to age 10 before going to boarding school abroad to transmit his citizenship, while still barring a 40-year-old who also lived in the U.S. only until the age of 10 from doing so.
More importantly, however, the court failed to recognize the extent of the law’s discrimination on the basis of gender. By making it easier for women to pass citizenship on to their children, the law also makes it easier for women to take on a custodial role. The somewhat greater risk of statelessness faced by the children of female citizens born abroad does not justify this sort of gender-based difference. Furthermore, as Flores-Villar pointed out in his defense, in certain countries such as Iran, children born to unmarried couples are considered to have their father’s nationality, not their mother’s. In those places, statelessness is more likely to result from strict requirements placed on fathers’ transmission of citizenship. The real reason for the gender-based distinction thus seems to be, not concern over statelessness, but an assumption based on stereotypes that women always are, or ought to be, the primary caretakers of their children.
The discriminatory effects of the law reach also to grandparents. The acknowledgment requirement, which is relatively unproblematic when a father is alive and capable of declaring his paternity, becomes a serious issue if the question is instead whether an orphaned child can live with his or her paternal grandparents. A man might be unaware of having a child during his lifetime and, as a result, have no opportunity to declare his paternity. After his death, the lack of an acknowledgement would prevent his child from being a U.S. citizen, making it more difficult for paternal grandparents to gain custody. Simply because their connection to the child was through the father, not the mother, grandparents in this case would face significant and unnecessary hurdles.
America has never benefitted from attempts to limit our definition of who is an American, and we have almost always benefitted from efforts to widen that definition. This is true in the case of the Americans who came through Ellis Island, and it is true today.
A one-year residency requirement to transmit citizenship is reasonable. Without it, families might pass on nominal citizenship for generations without ever visiting this country. A five- or 10-year residency requirement, however, is not reasonable. And a rule that applies a five- or 10-year residency requirement to some people while applying a one-year requirement to others, preventing some from passing on their citizenship at all, is both unreasonable and discriminatory
U.S. citizenship is a privilege and a gift, one that all Americans expect to be able to pass to their children. We also expect our immigration laws to help us keep our families together, not to tear them apart. Sadly, Congress is currently unable to bring itself to fix the many things that are broken in our immigration laws. But when it does – or when the courts get another chance to address this topic – we should expect that our laws honor a simple principle: American parents have American kids.
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Mr. Elkins either missed the fact or deliberately concealed the fact that the difference in transmission requirements relates only to unmarried mothers and fathers. Contrary to his assertion, all American men are not held to a different standard than American women in transmitting citizenship to children born abroad.
When a child is born in wedlock, the American citizen parent, whether mother or father must meet the 5 and 2 year requirement. If the married parents are both American citizens, the requirement is reduced to simple residence (time unspecified) in the United States before birth of the child. See Sections 301 and 309 of the Immigration and Nationality Act.
The situation therefore is much more complex and nuanced than Mr. Elkins presents it.