By Sandra S. Park, a staff attorney in the ACLU Women's Rights Project. Ms. Park was counsel on the ACLU's amicus brief in Flores-Villar v. United States.
When a child is born to an unmarried U.S. citizen living abroad, the parent's ability to transmit U.S. citizenship to the child turns on this question: Was the child born to a U.S. citizen father, or mother?
If the child's mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, so long as the mother previously had lived in the U.S. for one year, at any age.
But if only the child's father is a U.S. citizen, the law mandates more: The father must legitimate or legally acknowledge his child and have resided in the U.S. for many more years, at an age set out by statute.
The law, originally enacted in 1940, is one of the few remaining in the U.S. Code that explicitly discriminates based on gender, and for that reason, has been the subject of a number of equal protection challenges. The Supreme Court first examined the legitimation requirement imposed on fathers in Miller v. Albright (1998), resulting in a splintered plurality opinion. In 2001, the Court revisited the issue in Nguyen v. INS, a case co-counseled by the ACLU, and upheld the legitimation requirement. In an opinion that has been widely criticized, the Court found that the legitimation condition fulfilled the government's interest in assuring that a biological parent-child relationship exists, and that the father and child have a demonstrated opportunity to develop a meaningful relationship.
On Wednesday, the Supreme Court will hear argument in a challenge to the gender-based residency requirements contained in the law - Flores-Villar v. United States. Ruben Flores-Villar was born abroad in 1974. His U.S. citizen father brought him to this country when he was two months old, legally acknowledged him, and raised him as a single parent. Flores-Villar sought citizenship through his father, but was rejected based on his father's failure to satisfy the residency criteria for unmarried fathers: ten years in the U.S. prior to the child's birth, at least five of which were after the father was 14 years old. When Flores-Villar was born, his father had lived in the U.S. for more than a decade; however, because he was 16 years old, he could not show that five years of his residency occurred after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would have acquired citizenship through his parent.