The Supreme Court on November 9, 2016, will hear arguments in Lynch v. Morales-Santana, a case in which AILA submitted an Amicus Brief, along with the National Immigrant Justice Center (NIJC) and Northwest Immigrant Rights Project.  The case, which will address and better define how citizenship passes to children born to Americans overseas, has the potential to affect numerous children by eliminating current distinctions based on the biological sex of an unwed U.S. citizen parent.

In Morales-Santana, the Second Circuit ruled that the petitioner, who was born out of wedlock to a U.S. citizen father and a non-U.S. citizen mother, should not have been treated differently as to the status of his citizenship under the equal-protection clause of the Fifth Amendment, reversing a lower court ruling.  If the Supreme Court upholds the Second Circuit’s decision, the Court will create equality under the law for children born to an unwed U.S. citizen parent, regardless of the parent’s gender.

In determining citizenship, the law at the time the individual was born applies. When Mr. Morales-Santana was born, in 1952, an unwed father could only pass citizenship to a child if he had lived in the U.S. or an outlying possession prior to the child’s birth for at least ten years, with at least five of those years after the age of fourteen.  However, unwed mothers could pass citizenship to a child as long as she had been continuously present in the U.S. or an outlying possession for one year prior to the child’s birth.

In justifying this distinction, the U.S. government claims that it helps protect children from becoming stateless and ensures the child will have a relationship with the United States. But as the Second Circuit, Mr. Morales-Santana, and numerous Amici noted, laws based on historical stereotypes and unequal treatment of U.S. citizens do not further those ends, and discrimination of this nature does not pass constitutional muster.  Instead, the goals of our citizenship laws should be to protect family unity and encourage transmission of U.S. citizenship.

Regardless of what the Supreme Court decides, Congress should clarify, in the law, issues related to citizenship for children born overseas to Americans because of the risk of unequal treatment. Our laws need to be fair and just for all children, with straightforward standards on the transmission of citizenship. Congress has addressed certain factual situations in the 2001 Child Citizenship Act (INA §320 and §322), but it must go further.  Broader rules regarding the acquisition of U.S. citizenship for children born overseas to U.S. citizen parents will encourage transmission of U.S. citizenship and protect family unity.

Birthright citizenship laws are complex. In today’s global age, more and more Americans who are living overseas, whether expats, temporary visitors, or dual citizens, will increasingly find themselves facing the question of whether their child is a U.S. citizen. It is time for the Supreme Court to finally eliminate discriminatory distinctions in our citizenship laws.

Written by Jeremy A. Weber, AILA Bangkok District Chapter-APAC Chair