The Supreme Court is considering a challenge to a federal statute that seems to discriminate between unmarried American mothers and fathers when deciding questions of citizenship. However, even after the court delivered an oral argument on Wednesday, it doesn't seem to Los Angeles immigration lawyers that we are any closer to an answer.
The statute makes a distinction between unmarried American men and unmarried American women while deciding automatic transfer of citizenship to their children born outside of the U.S. It was challenged by Ruben Flores-Villar, a man who was born in Mexico in 1974, but raised in San Diego by his unmarried American father. He was denied citizenship and deported. Under federal law, if citizenship is to be automatically transferred from an unmarried father to a child, the child must have been born to an American father who has lived in the country for 10 years. Out of these 10 years, five must have been after the age of 14. These rules apply to those who were born before 1986. In Flores-Villar’s case, his father had only been 16 years old when he was born. So, Flores-Villar could not qualify for citizenship.
In the case of unmarried mothers however, the laws are much more lenient. An unmarried American woman must only have lived in the country for one year before the birth of a child in order for the child to be granted American citizenship. The laws have been changed since 1986, to shorten the period that an unwed father must have lived in the country from 10 years to five years. However, the requirements for unwed women have remained the same.
It is this discrimination based on gender of the unwed parent that Flores-Villar is challenging. The Supreme Court will have to decide on the challenge, and based on the comments of the justices, it seems unlikely that the Court will do anything about it. The majority of justices seemed to believe that this is a power that belongs to Congress and not the Court.
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