U.S. court: citizenship law's gender differences unconstitutional

By Joseph Ax

By Joseph Ax

NEW YORK (Reuters) - A U.S. law that treats mothers and fathers differently in determining whether their foreign-born 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.

Wednesday's ruling is likely to have a limited effect in terms of the number of people it applies to, but the decision addresses important principles regarding ‎laws that explicitly treat the sexes differently, legal advocates said.

The case involved Dominican-born Luis Morales-Santana, who claimed his father was an American citizen, while his mother was not. His father failed to meet the law’s requirements by 20 days, according to Morales-Santana.

Morales-Santana, who has been in detention for 15 years after multiple felony convictions, is seeking to avoid deportation. His court-appointed lawyers argued that the law’s disparate treatment of mothers and fathers violated the U.S. Constitution's equal protection principle.

The 2nd Circuit agreed, ruling that the lower standard should apply to both mothers and fathers.

"We conclude that Morales-Santana is a citizen as of his birth," the court said in reversing an immigration appeals board's decision and returning the case to the board for further review.

While the provision 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, assuming the government appeals.

"Statutes that actually on their face, by the letter of the law, discriminate based on gender are a rarity," said Kristin 1`Collins, a law professor at Boston University whose research on the statute's legislative history was cited by the court.

A spokeswoman for the Justice Department said it is reviewing the opinion.



(Reporting by Joseph Ax; Editing by Cynthia Osterman and Andrew Hay)