Supreme Court Rules That U.S. Citizenship Acquisition Law Can't Treat Children of Unwed Fathers and Mothers Differently

** LEGAL UPDATE **

In June of 2017, the U.S. Supreme Court declared in a case called Sessions v. Morales-Santana that a gender-based distinction in § 309(c) of the Immigration and Nationality Act (I.N.A.) violates the U.S. Constitution.

The section in question created a situation where unwed U.S. citizen mothers needed to have spent less time physically present in the U.S. than unwed fathers in order for the child to "acquire" citizenship through that parent. The result is that some children's right to citizenship through the "acquisition" process depended entirely on the gender of the U.S. citizen parent.

By way of background, acquisition of citizenship is a legal concept through which a child born outside the United States becomes a U.S. citizen by virtue of having a U.S. citizen parent or parents. The exact legal requirements for transmitting citizenship in this way depend upon the year in which the child was born, and the laws that were in effect then. Many of the laws require that the U.S. citizen parent have actually lived in the U.S. for a period of time, as a way of indicating true ties to this country.

In the Morales-Santanacase, the Supreme Court case addressed the laws in effect in 1962, the year Mr. Morales-Santana was born in the Dominican Republic. In order to acquire citizenship through an unmarried father then, the person needed to show that the father had lived in the U.S. for at least ten years, with five of those years occurring after the child turned 14, and the father must have either been listed on the child's birth certificate or taken other steps to acknowledge paternity, such as “legitimating” the child prior to its 21st birthday and before the child married.

Meanwhile, to acquire U.S. citizenship through an unmarried mother in and around 1962, the law required that the mother had U.S. nationality when the child was born, and have previously been physically present in the U.S. or one of its outlying possessions for a continuous period of only one year.

Justice Ruth Bader Ginsburg, who wrote the opinion, court, called this law's variation in treatment of mothers versus fathers “stunningly anachronistic,” and found that it fails to achieve its supposed purposes of ensuring that children born overseas have a strong connection to the United States in order to be allowed U.S. citizenship.

Unfortunately for Mr. Morales-Santana (who is facing deportation for a criminal conviction), however, the Supreme Court did not feel it had the power to extend the shorter period of required physical presence to children of unwed citizen fathers. Such a move, it said, was up to the U.S. Congress. Until Congress acts to create a uniform prescription for acquisition of citizenship that's not based on gender, the Court said that the longer residency requirement should apply to everyone seeking to acquire U.S. citizenship under this section of the law.

Effective date: June 12, 2017