Americans Helping Americans Abroad

This article is by guest blogger Kate Harveston.

A law that had dictated how children born abroad to unmarried parents can become U.S. citizens has been struck down by the U.S. Supreme Court. Justice Ruth Bader Ginsburg, a long-time champion of gender equality, wrote the opinion for the majority.

The court found that holding a child’s father to a standard of five years for the child to become a citizen, while only requiring a single year of citizenship from a child’s mother for the child to qualify, was unconstitutional. The gender lines set forth by Congress in 1952 and amended in 1986, were found to violate the equal protection clause.

One American’s Story

The issue was brought to the U.S. Supreme Court (SCOTUS) in connection with the case of Luis Ramón Morales-Santana. Morales-Santana’s father did not satisfy the requirements of the law for his son to be accepted as a citizen; the senior Santana fell short of the five-year statute by 20 days.

Morales-Santana's mother was a citizen of the Dominican Republic. She did eventually marry the child's father, and the family moved to the United States. The law came under scrutiny when Luis appealed for citizenship to avoid being deported after committing multiple felonies.

Implications for Morales-Santana and Others

Unfortunately for Morales-Santana, SCOTUS does not have the power to extend the less stringent requirements mothers enjoy to fathers. Only Congress can establish a new statute for citizenship, so until they do, the harsher, five-year requirement will be used for mothers and fathers.

That means that Morales-Santana will not be viewed as a citizen, and it could potentially shape the futures of other American’s who had enjoyed citizenship based on their mother’s time in the U.S.

Prospective vs. Retroactive Action

The Trump administration has taken an aggressive stance towards immigration and increased the rate of deportation for those living in the U.S. illegally. While the decision is not retroactive, it places children born abroad to unwed U.S. citizens at the risk of "statelessness," the condition of not being recognized as a national of any sovereign state.

The prospective nature of the ruling risks the deportation of far fewer Americans than a more common retroactive ruling would have. Because it was decided based on the equal protection clause, whatever duration Congress chooses for parents to qualify will apply for all children born abroad to unwed U.S. parents. While this could potentially provide citizenship for more people, the conservative majority in Congress is likely to rule for keeping the statute at five years or extending it.

Kate Harveston is a journalist and freelance writer. Find more of her writing on her blog, Only Slightly Biased.