Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010



When a foreign-born child is born out of wedlock, the child has a much better chance of acquiring citizenship if his or her mother is an American citizen than if the father is the one with a U.S. passport. This law seems premised on little more than the notion that mothers are the ones who should and will take care of the children, and that fathers do not take as much responsibility for raising their offspring. Many people see this as blatant gender discrimination.

Generally, people are born U.S. citizens if they are born in the U.S. or born to U.S. citizens. Senator John McCain was born to U.S. citizens in the Panama Canal Zone, but was eligible to run for President as a “natural born” citizen. Another example is President Franklin D. Roosevelt, who was born in Canada to U.S. citizen parents. For the child to be considered a United States citizen “at birth,” the U.S. citizen parent had to have been physically present in the United States for at least 10 years, five of which had to be after attaining the age of 14 if only one parent was a U.S. citizen until 1986. If the child is born abroad to two U.S. citizens, in most cases, the child is a U.S. citizen if both of the parents were U.S. citizens when the child was born and at least one of the parents lived in the U.S. at some point in his or her life. If the child was born abroad to one U.S. citizen, then in most cases, the child is a U.S. citizen if one of the parents was a U.S. citizen when the child was born, the citizen parent lived at least five years in the U.S. before they were born, and at least two of these five years in the U.S. were after the citizen parent’s 14th birthday.

In March 2010, the Supreme Court, in Flores-Villar v. United States, agreed to hear arguments to decide whether this law violates equal protection principles. The case deals with Ruben Flores-Villar, who was born in Mexico to a Mexican non-citizen mother but raised by his U.S. citizen father and U.S. citizen grandmother in San Diego, California, since the age of two months. Flores-Villar is now facing deportation. At the time of his birth, his father was only 16-years-old, but his father had acknowledged paternity with the Civil Register in Mexico. If his mother had been an American citizen who had lived in the United States for just a year before he was born, he would have qualified for citizenship. Unfortunately, since Flores-Villar’s father is the American citizen, his father has to have lived in the United States for 10 years prior to Flores-Villar’s birth, and at least five of those years after the age of 14. 8 USC §§ 1401(a); 1409(a) and (c).

In a prior Supreme Court case, Nguyen v. INS, in 2001, different requirements were imposed for the child to acquire citizenship based on whether the father or the mother was a U.S. citizen. This case survived constitutional challenge because the statute served two important governmental interests: assuring the existence of the biological parent-child relationship and showing the developed real everyday ties between the U.S. citizen parent and child. Nguyen had been born out of wedlock in Vietnam from an Armed Forces father. Writing for the Court, Justice Anthony M. Kennedy reasoned that men may not even realize their paternity in these situations. In Flores-Villar, the difference is one of residency of the father and not the relationship to the child. 

One possible argument would be that countries who follow the “jus sanguinis” rule assign the father’s nationality to a child born out of wedlock rather than the mother’s, thus leaving those children stateless. Under § 1409 c, to extend the same lengthy residency requirement to unwed mothers as to fathers would further exacerbate the problem of leaving children stateless.

Should Congress extend the benefits to both father and mother equally as a remedy for the Equal Protection violation, it will be the subject of discussion in the Supreme Court. For Flores-Villar to meet this residency requirement would be physically impossible, even with serious manipulation to the father’s timeline, since his father was only 16-years-old when he was born. Balancing gender equality and citizenship will be the task of the Court. It will be interesting to see what the future of Ruben Flores-Villar’s case holds and its effects on children born out of wedlock to a citizen parent.

Danielle L. C. Beach is the Managing Partner of Beach-Oswald Immigration Law Associates, PC, in Washington, D.C.

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Publications : Bar Bulletin: August 2010

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