Immigration laws and gender roles collide

While the country waits to see how President-elect Donald Trump will implement proposals such as building a border wall and deporting millions of illegal immigrants, a Supreme Court case is testing the practical aspects of so-called “derivative citizenship” for children of immigrants.

Luis Morales-Santana was born in the Dominican Republic to unmarried parents 54 years ago. His mother was native to the island, and his father had become an American citizen decades before. Eventually his parents married, allowing Morales to become a lawful permanent resident of the United States when he was about 13 years old.

Later, Morales caught the attention of immigration officials when he committed several crimes, including attempted murder and robbery. Efforts to deport Morales gained steam in 2000. But he argued he couldn’t be deported because his father was a U.S. citizen.

The citizenship law in effect at the time of Morales’ birth treated men and women differently for derivative citizenship, or passing citizenship on to children. Morales’ father had to have lived in the United States for a total of 10 years, half of that time after age 14. As it happens, his father moved out of the country about a year too soon to meet that requirement.

Had his mother been the one with U.S. citizenship, Morales would have been conferred citizenship much more easily. She would only have had to live in the United States for one year.

Morales said the law violated his right to equal protection under the law. His lawyer, Stephen Broome, attacked the presumptions that favored women with the lesser-time requirement.

“That is why they lowered the requirement—because they presumed the mother was going to be the guardian and they presumed that the child should stay with the mother,” Broome said in oral arguments before the Supreme Court on Nov. 9.

Deputy Solicitor General Edwin Kneedler argued on behalf of the government, claiming officials had good reasons for treating men and women differently. He said people should have sufficient ties to the United States before becoming citizens. Because common experience shows mothers tend to care for children when parents are not married, a shorter time requirement had the practical use of avoiding children who were “stateless,” without a country. And Congress agreed.

“In particular, this case concerns the granting of citizenship to children born out of wedlock abroad. A situation in which this court’s cases make clear that mothers and fathers are not typically similarly situated with respect to their legal status concerning the child at the moment of birth,” Kneedler said.

Justice Ruth Bader Ginsburg worried Kneedler’s argument relied on gender stereotypes in place decades ago: “To ask what the Congress in ’48 or ’52 would do is strange in this context, because the Congress sitting then took gender-based norms for granted.”

The justices seemed in agreement that treating mothers and fathers differently violates the Constitution. Kneedler suggested the 10-year rule apply to everyone, not just fathers. But that would still leave Morales without a remedy. A lower court gave him citizenship, but Congress authorizes citizenship rules, not judges. So the justices will have to untangle a knot of legalities in this case to decide whether Morales stays in the United States or goes back to the Dominican Republic.

Listen to “Legal Docket” on the Nov. 14 edition of The World and Everything in It.