Published on: Monday, June 12, 2017

In an immigration decision that will likely impact some criminal cases, the Supreme Court addressed whether a gender-based differential in the laws governing acquisition of U.S. citizenship by a child born abroad is constitutional. The laws in question concern when one parent is a U.S. citizen and the other is a citizen of another nation. Applicable to married couples, 8 U.S.C. § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years’ physical presence prior to the child’s birth; currently, the requirement is five years prebirth, § 1401(g). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child’s birth.

The Supreme Court held that the gender line Congress drew is incompatible with the Fifth Amendment.

For a copy of the opinion, Sessions v. Morales-Santana, No. 15-1191, click here.