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The federal public defender representing Flores-Villar, Steven Hubacheck, said the law perpetuates outdated “gender stereotypes” about caring for children in a time when many more single fathers raise children.

Scalia questioned whether these notions were outdated.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.

Non-citizens who attempt to vote can — and often do — face deportation, which opponents of the Arizona law argued is enough to deter fraud. “The penalties against non-citizens registering to vote are very serious and have served Arizonans — and all Americans — well for decades,” Linda Brown of the Arizona Advocacy Network, a plaintiff in the case, said in a press release. The court seemed to take this view by ruling the federal law does not allow states to require would-be voters to prove citizenship. But in other states, politicians are still proposing legislation that would crack down on voting by non-citizens.

Kris Kobach, who is running for Kansas secretary of state and helped draft Arizona’s SB 1070 immigration law, has said he wants to require proof of citizenship at polling stations, claiming “the illegal registration of alien voters has become pervasive.” Kobach won support for this idea from likely governor Sam Brownback, who is currently serving as a Republican senator.

Colorado Republican state Rep. Ted Harvey told TWI he plans to introduce a bill requiring documentation for voter registration in the form of a birth certificate or passport.

In Arizona, challengers to the 2004 law said in a press release that the law had prevented citizens who did not have documentation of their citizenship from voting. “We are elated that the Ninth Circuit has properly applied federal election law and struck down the documentary proof of citizenship requirement,” said Jon Greenbaum of Lawyers’ Committee for Civil Rights Under Law, who argued the case for appellants. “This will enable the many poor people in Arizona who lack driver’s licenses and birth certificates to register to vote.”

How often does document fraud actually happen? It’s tough to say — USCIS does not track incidents of fraud for immigration documents. Pro-enforcement groups such as Center for Immigration Studies claim document fraud is rampant and was partially to blame for the 9/11 terrorist attacks, when foreign nationals with driver’s licenses were able to board planes they later hijacked. (Of course, some states allow non-citizens to obtain driver’s licenses legally.)

The new documents would not prevent illegal immigrants from giving false Social Security numbers, but they would make it more difficult to fake naturalization documents. Some senators have argued Social Security cards also need a high-security overhaul to become more resistant to fraud. Sens. Chuck Schumer (D-N.Y.), Bob Menendez (D-N.J.) and Patrick Leahy (D-Vt.) have proposed biometric Social Security cards and criminal penalties for using fake Social Security numbers as part of their proposals for comprehensive immigration reform.

Two veterans awaiting deportation described by the AP argue they were used by the military and are now being cast aside by the country they served. But the story does not touch on the question of whether the military misleads immigrants into joining as a path to citizenship. Although the military is beginning to offer fast-track paths to citizenship for current enlistees, the Army is so far the only branch that has fully implemented these programs. Meanwhile, some charge that military recruiters exploit immigrants by allowing them to believe they will be able to obtain citizenship for themselves and their families through military service — even though this isn’t always the case.

For citizen veterans, the court system is beginning to offer more leniency as part of an understanding that military service can lead to various mental and emotional conditions. In November, the U.S. Sentencing Commission will issue new rules allowing federal judges to consider a criminal defendant’s military service to issue a shorter prison sentence.

But these standards do not apply to immigration courts, where a 1996 anti-illegal immigration law made deportation the standard for immigrants who had committed certain crimes. Immigrant rights advocates argue these laws are unfair, particularly to veterans:

“Drugs, anger management, weapons charges, that’s what a lot of vets are getting caught for, and there is no relief,” said Margaret Stock, a recently retired Army reservist and immigration attorney who taught at the United States Military Academy at West Point. “The 1996 law really put the nails in their coffin.”

Coombs’ attorneys, Shagin and Heather Boxeth of San Diego, Calif., who have represented or advised immigrant veterans in similar straits, estimate up to 4,000 veterans who served as long ago as World War II are now in immigration detention or have been deported, but acknowledge that there are no hard numbers.

ICE spokeswoman Lori Haley said identifying and removing dangerous criminals from the country is an agency priority — and that the cases of people with prior military service are carefully reviewed.

The military does not allow illegal immigrants to enlist in the army, and both veterans in the AP story entered the country legally. But it is likely that many illegal immigrants who do manage to join the military do so in hopes of obtaining legal status for themselves and their families. In these cases, deportation for veterans could be even more likely. Immigrant rights advocates claim that military recruiters specifically target undocumented students to join the military by promising green cards.

One way to make the system more fair, some argue, would be for Congress to pass the DREAM Act, a now-stalled bill that would allow undocumented young people who entered the country as children to gain legal status through attending college or serving in the military. Defense officials have said the bill would be a boon for military recruitment, and supporters of the bill argue it would allow the country to properly acknowledge the service of immigrants in the military.

He called people who enter the country illegally “criminals” and “alien invaders,” and even equated having a child in the United States as a non-citizen with child abuse: “If an American citizen were to do the things to a baby that these people do to have ‘anchor baby’ status, you would probably be charged with child abuse,” he said. “They’re really exploiting these children. We do not let Americans who live the life of a criminal keep their children.”

Metcalfe, who founded the group State Legislators for Legal Immigration in 2007, said lawmakers in Nevada and Alabama have already signed onto his 14th Amendment Citizens Model Committee to draft bills related to citizenship. Arizona State Sen. Russell Pearce (R), who also wrote Arizona’s contested SB 1070 immigration law, has also said he plans to introduce a state bill limiting citizenship to children born to American citizens.

The group will work with the Immigration Reform Law Institute, the legal arm of the pro-enforcement Federation for American Immigration Reform, to write bills that can be introduced in state legislatures across the country. Although citizenship is federal issue, Metcalfe argued that states can determine citizenship because they issue the birth certificates. He said the group will work with lawyers and constitutional scholars to make sure the bill is legally viable. “We will ensure due diligence is done to make sure language will be written in a way that can be fought in the courts and ultimately be victorious in the courts,” Metcalfe said.

This seems difficult to do, given that various constitutional scholars have said such efforts would directly violate the 14th Amendment. There is also the question of whether removing birthright citizenship would actually slow illegal immigration. There is little data to prove that unauthorized immigrants cross the border only to have children here, and even if they do, those children cannot petition for their parents’ legal status for more than 20 years. Reports have shown that ending birthright citizenship would simply have the effect of increasing the population of illegal immigrants, since children of illegal immigrants would themselves not have legal status.

Also speaking at the press conference, Pennsylvania State Rep. Rob Kauffman said the citizenship effort, along with other enforcement measures, could help the country deal with the 11 million illegal immigrants in the country without costly mass deportations.

“These are initiatives that will enable us to not round up illegal immigrants,” Kauffman said. “They will not come here if they do not receive these benefits. The spigot is turned off as you address these issues.”

Shahed Hossain, who had lived legally in the U.S. for 10 years, was deported in 2007 after more than a year in a detention facility. He was stopped at the border and told guards he was a citizen before backtracking, ColorLines reported. Under the 1996 Immigration Reform and Individual Responsibility Act, it is illegal for any immigrants — even those with green cards — to claim to be citizens:

The law was intended to prevent undocumented immigrations from lying to get a job or enter the country without a visa. It wasn’t supposed to target green card holders like Hossain, but as with all of the beefed-up enforcement initiatives federal officials have launched since then, the law is a blunt  tool. So Hossain was charged that day with making a false claim to U.S. citizenship. The charge triggers automatic deportation.

Since the mid-90s, the immigration removal system has become increasingly standardized to the point of removing nearly all discretion from immigration judges. While judges previously could cancel deportation based on the individual’s circumstances, current law makes it next to impossible to do so.

Judges also face a monumental number of cases: In mid-June, a record of 247,922 cases were awaiting resolution in immigration courts, according to Transactional Records Access Clearinghouse at Syracuse University. These cases are sometimes dealt with in mass hearings, NPR reported in September. As programs such as Secure Communities and Operation Streamline net more illegal immigrants, backlogs and heavy caseloads seem likely to exacerbate the problem of a conveyor-belt judicial process.

At the same time, Democrats have stepped up immigration enforcement in an effort to compromise with Republicans. But comprehensive immigration reform has yet to appear, and immigrant rights groups argue it is the only way to resolve the problems within the current immigration enforcement system:

“If we are going to be continuing to escalate what we call enforcement, or mass deportation,” says Michelle Fei, director of the Immigrant Defense Project in New York City, “many … who are coming forward to register or to get legalized might actually land in deportation. Enforcement will undercut the promise of reform. We don’t want a system that is rounding people up and deporting people without due process.”

Refugees are one of the few non-citizen groups eligible to receive welfare, but current law states they can only receive Supplemental Security Income for seven years after they enter the U.S. The idea is that after this period of time they will have naturalized — a process that takes a minimum of five years — and can apply for government aid as U.S. citizens. But many are unable to pass citizenship tests, pay fees or overcome administrative hurdles in time to gain citizenship within the seven years. In response, President George W. Bush successfully pushed for a two-year eligibility extension in 2008.

The extension was a good start, refugee advocates say, but many refugees need more time to earn citizenship. And the benefits will be cut off for more refugees in coming months, with an estimated 11,000 refugees expected to lose SSI benefits within the next 13 months.

If passed, Gillibrand’s extension would give elderly and disabled refugees who were granted the 2008 extension one additional year to become citizens. But it would also mean continuing to aid refugees who fled persecution or torture in their native countries, many of whom could be unable to pay rent or buy food without SSI money.

About 90 percent of the USCIS budget comes from fees, which are adjusted every two years. Naturalization is an expensive process, and estimates put the cost to the agency at $655 per application. But as many fees continually go up, immigrants rights advocates argue they become untenable for applicants who make little money. At $595, naturalization fees were already difficult to find for some immigrants, who also must hand over $85 for biometric fees (that fee was increased by $5 this year).

The naturalization fee is the final step to becoming a citizen, after immigrants have lived in the U.S. as a legal permanent resident for at least five years — sooner if a spouse or parent is a U.S. citizen. But some immigrants are delayed because they can’t afford the fee, Ali Noorani, executive director of the National Immigration Forum, said in a statement today:

“We applaud the Administration for not increasing the price of U.S. citizenship and putting a halt to the exorbitant fee increases that have become a barrier for immigrants who are eager to become Americans. … The Obama Administration is demonstrating a commitment to encourage immigrants to become citizens, and that is ultimately good for our democracy.”

Other fees were increased, which immigrants rights advocates argue deters foreigners from seeking legal routes to immigrate to the U.S. “It begs the question of Congress: If we want these people to take these steps, we have to make sure that we’re not pricing them out of their reach,” Clarissa Martinez of the National Council of La Raza told USA Today when the fee increases were proposed in June.

A number of fees were increased. Green card application fees will increase from $930 to $985, while certain temporary legal status application fees will go from $710 to $1,130. Most applicants have to wait long periods to actually enter the U.S. — if they are allowed entry at all — even after shelling out the $985 fee.

Via Think Progress:

BARBOUR: I’ve had a different experience then perhaps some other governors. I don’t know where we would have been in Mississippi after Katrina if it hadn’t been with the Spanish speakers that came in to help rebuild. And there’s no doubt in my mind some of them were here illegally. Some of them were, some of them weren’t. But they came in, they looked for the work. If they hadn’t been there — if they hadn’t come and stayed for a few months or a couple years — we would be way, way, way behind where we are now.

He also said he would support a reform of the way citizenship decisions are made, joining the ranks that argue the U.S. should allow the best and brightest immigrants to stay:

My idea is everybody from Stanford who’s from India that gets a PhD, we ought to stamp citizenship on his diploma. So instead of him going back to India and starting a business that employs 1,800 people, then he’ll start a business that employs 1,800 people in Des Moines, Iowa, instead of India. A lot of it is just common sense. And common sense tell us we’re not going to take 10 or 12 or 14 million people and put them in jail and deport them. We’re not gonna do it, and we need to quit — some people need to quit acting like we are and let’s talk about real solutions.

Barbour’s message may be better for the future of the GOP than that of his counterparts. Some observers argue Republicans will do lasting damage to their ability to win votes if they continue to push anti-immigration efforts perceived as racist — an end to birthright citizenship, for example. Still, anti-immigration stances continue to be popular among politicians and candidates from both parties. Among the 37 races for governor this year, candidates in more than 20 states have come out in support of Arizona’s contested SB 1070 immigration law, Politico reported today.