Missed Opportunity for U.S. Supreme Court to Rectify Discriminatory Nationality Law

London, 27 June 2011 

On 13 June 2011, the Supreme Court of the United States of America failed, in the case of Flores-Villar v United States U.S. 564 (2001), to recognise the discriminatory character of a nationality law that creates an unfair double standard which makes it more difficult for males, and particularly minors, to transmit their U.S. citizenship to their children born abroad and out of wedlock to foreign mothers. 

The Supreme Court affirmed the decision of the Court of Appeal on grounds that the discrimination was legitimate as it substantially furthered the important government objectives of guaranteeing strong ties between child, parent and state, and of avoiding statelessness.

The Supreme Court affirmed the Ninth Circuit Court of Appeals’ decision to uphold the constitutionality of former Immigration and Nationality Act sections 1401(a) (7) and 1409. The 1940 version of the law states that in situations where a child has been born out of wedlock and in a foreign territory, if the child's mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, as long as the mother previously lived in the U.S. for one year, at any age. If only the child's biological father is a U.S. citizen, however, the law requires the father to have resided in the U.S. for 10 years prior to the child's birth, at least five of which were after the father was 14 years old.

The applicant, Ruben Flores-Villar, was born in Mexico to a sixteen year old U.S. citizen father and a Mexican mother. His parents never married and as a baby he was brought to San Diego in California where he was raised by his father and paternal grandmother, both U.S. citizens. As an adult, Flores-Villar was convicted of several crimes and subsequently appealed against a criminal conviction for illegal entry into US territory leading to his deportation. Flores-Villar claimed that he was a U.S. citizen, but was told that it was impossible for him to meet the statutory requirements of citizenship, as his father had not, at the time of his birth, been a U.S. resident for five years after the age of fourteen. Had his mother been the U.S. citizen, or had his father been at least nineteen years old at the time of birth and resident in the U.S. since he was nine, Flores-Villar would have been recognised as a U.S. citizen.

The Court of Appeal judgment widely referred to the case of Nguyen in which it was held that, since two important governmental interests were substantially furthered by §1409’s distinction between fathers and mothers, it was permissible under the law. The first interest was that of “assuring that a biological parent-child relationship exists”, and the second was that of:

“ensuring that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States”.

The facts of the case render the first interest of ‘legitimation’ to be irrelevant as the applicants’ father legally recognised him as his son in 1985. The Court of Appeal however held the second interest of ‘connection’ to be an important government objective which legitimised discriminating between fathers and mothers. This was despite the fact that there is no discernible reason to distinguish between mothers and fathers in this regard.

The Court of Appeal also upheld the government argument that this discriminatory treatment substantially furthered an important government objective of avoiding statelessness, as many countries confer citizenship based on bloodline (jus sanguinis) rather than on place of birth (jus soli) as the U.S. In doing so, the Court did not pay due consideration to the amicus brief submitted by a group of scholars on statelessness who argued that such a differentiation between men and women did not contribute to the avoidance of statelessness. 

ERT Executive Director Dimitrina Petrova said:

“It is disappointing that the Court did not recognise that this controversial law was adopted in a context of outdated gender-stereotyping when it was not considered inappropriate or discriminatory to hold sexist beliefs that mothers are more responsible for the upbringing of children than fathers. Furthermore, the U.S. government justification that this law is necessary to avoid statelessness is misguided. All children born in such circumstances are at high risk of statelessness regardless of whether it is their mother or father who is a U.S. citizen, and consequently, the distinction made by the Immigration and Nationality Act should not be recognised as a legitimate one, but rather as one which heightens the risk of statelessness for the children of U.S. fathers born out of wedlock in foreign countries.”

It is noted that the Supreme Court ruled in a 4 – 4 deadlock decision (Justice Kagan having recused herself from the case due to her previous participation as Solicitor General), therefore putting into question the precedential value of the decision. It is expected that this issue will come before the Court again, and it is hoped that this discriminatory law will be struck down. 

To read a summary of the case, click here.

To read the Judgment of the Court of Appeal, click here.

To read the Judgment of the Supreme Court, click here.