by Loretta McRae Filippi (’19)
Imagine two babies born outside of the United States. One is born to a U.S. citizen mother and a father from another country, the other to a U.S. citizen father and a mother from another country. Neither couple is married. The child born to the U.S. citizen mother will be able to derive U.S. citizenship from her mother with nothing more than her mother’s name on the birth certificate, and proof of the mother’s citizenship and that the mother lived for the required amount of time in the United States. The baby born to the U.S. citizen father will not be able to acquire citizenship through her father even if she can prove her father is a citizen and lived the required amount of time in the United States, unless the father legally legitimates her before the age of 18, provides proof of paternity, agrees to support him financially and the child is in the custody of the father. All a mother needs to do to give citizenship to her child is to be the mother, this is not the case for a father. This is an example of the largest remaining gender difference in our immigration laws. As a student of immigration law, I was surprised to learn of this large gender asymmetry. This post will briefly review historical changes to our derivative citizenship laws, examine case law as it currently exists, and put forward ideas of why it should change.
Derivative citizenship is citizenship that is passed on from parent to child through blood. Derivative citizen laws have changed throughout the years and, perhaps surprisingly have always included some degree of difference between ability to pass on citizenship and what is required to do so depending on whether, in the case of one U.S. citizen parent, the parent is a woman or a man. Additionally, there have been differing treatments based on whether the baby is born in or out of wedlock. Today, the main differences remaining in our derivative citizenship laws is in the additional requirements placed on a father to give citizenship to his child born outside of a marriage that are not required of a mother. A study of these differences in our derivative citizenship laws is an excellent illustration of how ideas of gender shape our laws , while highlighting the danger of too much deference given to congress that is common in immigration law. The gender imbalance in our derivative citizenship laws run contrary to the values we strive for in other areas of our society that have been reflected in other areas of law.
Originally, women had much less ability to retain and pass on citizenship than men. Citizenship from birth abroad could only be given by a father, women could not extend citizenship to their children. Similarly, after the Expatriation Act was passed in 1907, women would lose citizenship upon marriage to a foreigner. Clearly at the time, there was consensus that the true holders of citizenship were men and that permitting citizenship to transfer through women was problematic. It is likely that some of this justification rested on the man as the head of the household and his perceived ability to direct the values and culture of a household. With women’s suffrage in 1920, some of this began to change, as representatives realized they needed to court the women’s vote. After 1934, women could convey citizenship to their children, and by the 1940’s women would no longer lose their citizenship through marriage to a non-citizen. When this changed, the residency requirements for being able to grant derivative citizenship become stricter and for the first time, a residency requirement is placed on the recipient child to retain their citizenship.
Although the law changes, the ideas behind them are slow to change as we see in Roger vs. Bellei, a 1950 case about the constitutionality of losing citizenship after not meeting the required residency before age 18. The court in Bellei, envisions a greater perceived danger when the father is the alien parent, “These problems are particularly acute when it is the father who is the child’s alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child’s own primary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary.”
The ability of women to convey citizenship to their children was not the end of gender differences in the acquisition of citizenship laws. Until very recently, there have been differing residency requirements between men and women as well as the still remaining difference in the out of wedlock rules. Legal challenges to these laws based on gender have been largely unsuccessful until a recently.
Two major supreme court cases that unsuccessfully challenged the out of wedlock rules are Miller v. Albright and Nguyen v. Immigration and Naturalization Service. In Miller, a woman seeks citizenship through her father, a U.S. citizen. Miller argues that her fifth amendment right for due process was violated because she was not given citizenship at birth while those with citizen mothers are. The court decides that because men and women are not “similarly situated” in regard to their relationship with their children, the statutory differences to not violate the fifth amendment. The court argues that a woman will know that she has a child because she gives birth while a father may not be present at the birth and may not even know that there is a child and additionally, that proof of parentage is much easier to show for woman than for a man.
In Nguyen, a young man who was born in Vietnam to a Vietnamese mother and a U.S. citizen father and who lived after the age of six with his father in the United States is denied citizenship because his father failed to meet the requirements of the statute before Nguyen turned 18. Nguyen asserts a violation of the fifth amendment because of differing treatment based on whether the one parent with American citizenship is the mother or the father. As in Miller, the court finds no violation because the different requirements are based on the different relationships between mothers and fathers at birth.
Both Nguyen and Miller are unpersuaded by the fifth amendment argument. However, in Sessions v. Morales-Santana, a case decided in June 2017, the court does find a violation of equal protection. In Sessions, it is not the out of wedlock rules being challenged but longer residency in the United States required to convey citizenship by a father than by a mother. The court says that there is no reason that the residency requirements should be different between men and women and any argument otherwise is based on “overbroad generalizations” and “now untenable, assumptions.” Unfortunately for the plaintiff, the court decides that the longer residency requirement will stand for both genders until Congress addresses the issue.
The decision in Sessions is a step in the right direction as it recognizes that a gender difference in our immigration laws can violate the Constitution, thus limiting Congress’ power to some extent. However, I think that the court should have gone farther. I believe that the court could have found for the plaintiff and still been acting within its authority. The way the court decided still gives too much deference to congress on the matter of derivative citizenship and not enough focus on the constitutional rights of people. This is a major problem in our county’s immigration jurisprudence.
As it now stands, it is only the extra steps required of a child born to an unmarried citizen father that show gender bias in the derivative citizenship laws. It is possible that the court’s holding in Sessions is indicative of a willingness of the Supreme Court to revisit the issue and to find differently. Although there may be justification for some different requirements for men and women, the law as it currently exists seems to me clearly discriminatory for reasons articulated by Sessions. Why should there be a cut off at age 18 for a man’s children while a woman’s children get citizenship at birth? Why should a man have to agree to financially support their child when a woman does not? Why is proof of paternity not enough but a formal legitimization is required? Just giving birth does not mean a woman will be a good mother or have a future relationship with the child. Similarly having a child out of wedlock does not mean that a father will not have a strong future relationship with a child. Why is there such different treatment based merely on a marriage between a couple? If paternity is presumed by marriage shouldn’t paternity also be presumed by a father’s simple confirmation?
The idea that a man is not expected to have a relationship with his children is sexist. Furthermore, the burdens placed upon a father in this case are not insignificant and likely involve extra financial costs. The 18-year window is especially problematic as a person may not be aware of these requirements especially if they have acted and been acknowledged as the child’s father, and they may never need show their child’s citizenship until it is too late as was the case in Miller and Nguyen. On the other hand, the ideas behind the laws are harmful to women. The unmarried mother should not be expected to take on the full burden of a child by herself. Society should encourage both men and women to take on equal parenting responsibilities. This is good for women, for men and for children. Women who have help in childcare are more likely to succeed professionally and children who have involved fathers have been shown to have better outcomes. The laws as they exist are discriminatory of both men and women.
Additionally, the focus on marriage should be eliminated. The reality is that more and more couples are choosing to forgo marriage so that this special treatment for married individuals seems outdated. Marriage is not necessarily an indicator of relationship stability, longevity or even fidelity. Whether or not someone wants to be married to a person does not show whether they will be an involved parent to a child they have with that person.
Our laws should strive to treat men and women the same when possible. For derivative citizenship, this would mean changing the requirements placed on the father of a child born outside of marriage. First, legal legitimization, and agreeing to financial support is too heavy a burden. If congress feels that paternity needs to be absolutely established, as maternity is when a woman gives birth, a DNA test should be sufficient. A DNA test is relatively quick and inexpensive, and it is accurate. Secondly, the 18-year time limit should be eliminated.
It would be possible for congress or the court to eliminate the gender imbalance in the law by requiring the same burdens of mothers. This is what the court did in Sessions. However, I would advocate against that, because I believe a child who has a claim to citizenship should not be denied that citizenship because a parent is unable or unwilling to support them or they happen to be over the age of 18.
The laws need to change to reflect a less gendered view of citizenry and parenthood. Hopefully the gender differences in the acquisition of citizenship laws will change accordingly.