Tuesday, May 22nd, 2012

Supreme Court weighs fairness of citizenship law differences for mothers and fathers

By Elise Foley
Thursday, November 11, 2010 at 10:40 am

The Supreme Court heard a case yesterday that serves as a good example of the complexities of immigration law: A Mexican-born man who grew up with an American-citizen father in the United States is asking the court to protect him from deportation, claiming the law would have granted him citizenship if his mother had been an American instead of his father.

Why? Citizenship law allows children born outside the United States to at least one U.S. citizen parent to become citizens, if the parent has lived in the country for at least a certain period of time before the child is born. But the length of time necessary is different for mothers and fathers. Before 1986, American fathers needed to have spent at least 10 years in the country — five of them after the age of 14 — to pass on citizenship to their children. American mothers needed only a year living in the United States before the child’s birth to pass on citizenship.

In the Supreme Court case, Ruben Flores-Villar’s father was only 16 when Flores-Villar was born in 1974 — meaning he did not meet the five-year requirement to pass on citizenship to his son. But if the laws for men were the same as those for women, Flores-Villar would be a citizen. Since he was raised by his father, he argues, the law discriminated against men, and he should be allowed to stay in the United States.

The law was changed in 1986, but still has different residency requirements for men and women. While mothers still only need one year of residence in the United States before the birth of a child, fathers now need at least five years, two of which must be after the age of 14.

The Court won’t issue a decision until summer — and perhaps will issue no ruling — but gave some indications as to how it was looking at the case, the Associated Press reports:

Chief Justice John Roberts and Justice Antonin Scalia seemed to sum up the court’s dilemma when they agreed that even if the law is unfair, the only thing that could help Flores-Villar is if the court would, in effect, make him a citizen. “Never done,” Scalia said.

The federal public defender representing Flores-Villar, Steven Hubacheck, said the law perpetuates outdated “gender stereotypes” about caring for children in a time when many more single fathers raise children.

Scalia questioned whether these notions were outdated. He asked if it wasn’t generally true that with “an illegitimate child, it is much more likely that the woman will end up caring for it than that the father would?”

Justice Ruth Bader Ginsburg interjected that the court should be considering parents like Flores-Villar’s father “who don’t fit this mold.”

The immigration system does not provide very many options for resolving this type of case. It’s not clear how often the issue comes up, but the AP reports that some groups say more than 40,000 children per year are born to and raised by an American parent outside the United States — some of whom, undoubtedly, are men.

If children are not automatically granted citizenship, the only option would be for the U.S. citizen parent to petition for a family-based visa for them. If this is done when the child is under the age of 21, the process takes less time because there are no limits set on the number of Immediate Relative Immigrant Visas that the State Department can grant. If parents wait until the child is older than 21, though, wait times could be very long because of the quota system, particularly from countries such as Mexico with a large number of applicants.

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