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Old Derivative Citizenship Rules Declared Biased, Unconstitutional

By Casey C. Sullivan, Esq. on November 02, 2015 | Last updated on March 21, 2019

A child born to an American is an American citizen -- right? Not exactly. Everyone born in the U.S., of course, gets citizenship, much to Donald Trump's chagrin. Children of American citizens born abroad get "derivative citizenship," or citizenship through parents, only under certain conditions.

When it comes to derivative citizenship, the deciding factor is often the American parent's gender, if the child was born out of wedlock. That means many children born outside the U.S. to an American father, for example, are denied citizenship that would be available had they been born to an American woman. An older version of that system is unconstitutional, a recent Second Circuit decision declared in an opinion that might put current immigration laws at risk.

America's Gendered Citizenship Rules

Under the Immigration and Nationality Act of 1952, a child born abroad to an unwed citizen mother and a non-citizen father is a citizen, but only if the mother has spent at least a year in the United States beforehand. The foreign-born children of unwed American fathers and non-citizen mothers are only citizens if the father had spent a total of ten years in the U.S., including five consecutive years after he was 14 years old. That's a much higher bar for men to get over than women. (Even today, fathers passing on citizenship face a much harder set of requirements.)

Enter Luis Ramon Morales-Santana, the Dominican Republic-born son of an unwed American father and a Dominican mother. Morales-Santana's father was born in Puerto Rico and acquired U.S. citizenship in 1917 through the Jones Act. Two years later, he left to the Dominican Republic and 43 years later Luis Ramon was born. Morales-Santana would have qualified for citizenship had his mother been a citizen or had his parents been married.

Morales-Santana eventually made his way to the United States where he was not only not a citizen, but was eventually on the verge of being deported. After being convicted of various felonies, the Board of Immigration Appeals denied his removal appeal.

A Violation of Equal Protection

Morales-Santana brought his case to the Second Circuit, arguing that the law violates the Fifth Amendment's guarantee of equal protection. (Morales-Santana made a series of statutory arguments, including that the Dominican Republic was part of the United States.) The court agreed with Morales-Santana's constitutional arguments, ruling that he had derived citizenship through his father.

The government had argued that the differences ensured "a sufficient connection between citizen children and the United States" and avoided the risk of statelessness. Under intermediate scrutiny, both those rationales fell, the Second Circuit ruled. While ensuring a connection to the United States might be important, the government failed to show how treating mothers and fathers differently justified that. The United States "offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child's birth."

As to statelessness, it was never the actual purpose of the law, the court explained. Prior to 1940, derivative citizenship came automatically to children of American fathers, so long as they had ever lived in the United States. Prior to 1934, women had no statutory right to confer citizenship. When Congress began altering the system, statelessness was never mentioned.

While the 1952 Act is no longer in effect, today's derivative citizenship laws treat mothers and father's unequally. The Second Circuit's ruling could put them on shaky ground.

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