ONE of the cornerstones of U.S. constitutional law is “equal protection”. That means people in similar situations should be treated the same. There should be no favoritism, such as on the basis of sex\gender. Men and women should be treated equally under the law.
In a recent Supreme Court decision, Sessions vs. Morales-Santana, the Supreme Court held the different physical presence requirements for unwed mothers and unwed fathers to transmit US citizenship to their children born outside the U.S. was unfair and unconstitutional. Instead, unwed mothers and fathers should not be treated differently in determining whether their children may claim U.S. citizenship.
Under existing law, unwed mothers had a much easier time transmitting U.S. citizenship to their children. Basically, the mother should have lived in the U.S. (or a U.S. possession, such as the Philippines before 1946), for one year at any point in her life, prior to the child’s birth. Unwed fathers, on the other hand, had to live in the U.S. for a total of 10 years, five of which were after the age of 14. The law later changed, and now requires the father to be physically present in the U.S. (or U.S. possession) for five years before the child’s birth, two of which were after the father’s 14th birthday.
In this case, Morales-Santana was the child of an unwed father. He came to the U.S. when he was 13 and lived here for decades. He was convicted of robbery, attempted murder, and other crimes, which made him deportable. He tried to argue he was a U.S. citizen, by his having been born to a U.S. citizen father. The law at the time required the father to have lived in the U.S. for 10 years before the child’s birth, five of which were after the father’s 14th birthday (or up to the father’s 19th birthday). In this case, Morales-Santana’s father left the US a mere 20 days before his 19th birthday, and therefore did not meet the requirements for transmitting U.S. citizenship to his out of wedlock child.
Morales-Santana argued it was unfair (or a violation of equal protection under the law) that unwed mothers could live in the U.S. for only one year at any time in their life before their child’s birth, but unwed fathers had to live in the U.S. for 10 years before the child’s birth, five of which were after the father’s 14th birthday. Unwed fathers and unwed mothers should be treated the same. And if the same law that applied to unwed mothers was followed, then he was a U.S. citizen, and should not be deported.
The Supreme Court agreed the law violated Morales-Santana’s equal protection rights, and that unwed mothers and unwed fathers should be treated the same. Unfortunately, rather than allowing unwed fathers to benefit from the same requirements as unwed mothers, the Supreme Court went the other way, and held that unwed mothers should now meet the same requirements as unwed fathers, which is they must have lived in the U.S. for at least five years before the child’s birth, two of which were after the mother’s 14th birthday.
As a result of this decision, Morales-Santana was not a U.S. citizen, and was deportable. From now on, unwed mothers have to meet the same requirements as unwed fathers in order to transmit U.S. citizenship to their children, unless Congress later changes the law.
Therefore, any unwed US citizen mother who gave birth abroad can no longer transmit U.S. citizenship to their child unless they had lived in the U.S. for five years, two of which were after their 14th birthday.
Also, bear in mind that there have been thousands of Filipinos born in the Philippines to a U.S. parent. It could be possible the parent satisfied the physical presence requirements of the law, such that their child could be a U.S. citizen. This could include children of unwed mothers, unwed fathers, or a married couple where one of the parents is a U.S. citizen.
If your parent was a U.S. citizen, and you were born abroad, you may want to seek the advice of an attorney, who could evaluate your situation and determine whether or not you are an “instant citizen,” where you’re not required to be petitioned for a green card, wait five years, and then apply for naturalization. You go straight to U.S. passport, if eligible.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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