By JOSEPH AX, Reuters July 9, 2015 4:42am
NEW YORK – A U.S. immigration law that treats mothers and fathers differently in determining whether their children may claim U.S. citizenship is unconstitutional, a federal appeals court ruled on Wednesday, four years after the U.S. Supreme Court split 4-4 on the issue.
The 2nd U.S. Circuit Court of Appeals in New York said the statute applied “impermissible stereotyping” in imposing a tougher burden on fathers.
The law requires unwed fathers who are U.S. citizens to spend at least five years living in the United States – a 2012 amendment reduced it from 10 years – before they can confer citizenship onto a child born abroad, out of wedlock and to a partner who is not a U.S. citizen.
For unwed U.S. mothers in the same situation, the requirement is only one year.
The case involved a Dominican-born man named Luis Morales-Santana whose father was an American citizen and whose mother was not. His father failed to meet the law’s requirements by 20 days.
Morales-Santana has been in detention for 15 years awaiting deportation after multiple felony convictions. His court-appointed lawyers argued that the law’s disparate treatment of mothers and fathers violated the equal protection clause of the U.S. constitution.
The 2nd Circuit ruled that the lower standard should apply to both mothers and fathers and therefore concluded Morales-Santana is a citizen by birth.
While the provision in question is relatively obscure, the U.S. Supreme Court took up the issue in 2011 after the 9th Circuit in San Francisco upheld the statute as constitutional.
After Justice Elena Kagan recused herself, however, the court split 4-4, leaving intact the 9th Circuit ruling.
Stephen Broome, one of Morales-Santana’s lawyers, said he would not be surprised if the Supreme Court chose to revisit the issue.
“It’s a case of limited effect on the number of people, but there are some very important legal principles at stake,” said Sandra Park, a lawyer for the American Civil Liberties Union who worked on the 2011 case.
If the Justice Department appeals Wednesday’s decision, she said, the Supreme Court would have a second opportunity to review one of the few federal laws that make distinctions based on gender.
The Supreme Court previously upheld a different section of the law that imposes other requirements only on fathers, such as establishing paternity. In a 5-4 vote in 2001, the court said that provision was based on legitimate biological differences. — Reuters