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Monday, Mar 22, 2010 5:38 PM UTC

Court to weigh citizenship rule that varies by sex

Foreign-born children with American dads have a harder time claiming status than those with American moms

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Topics: Immigration,

One of Ruben Flores-Villar’s parents is an American. Unfortunately for him, it is his father and not his mother, a fact that has complicated Flores-Villar’s attempts to acquire U.S. citizenship and avoid criminal charges for being in the United States illegally.

Now, the Supreme Court is entering a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.

The justices agreed Monday to hear Flores-Villar’s appeal of his criminal conviction and consider whether a provision of immigration law unfairly discriminates on the basis of gender. The case will be argued in the fall.

Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

When he sought U.S. citizenship in 2006 — to stave off criminal charges of being in the country illegally — U.S. immigration authorities turned him down. For people born before 1986, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born.

American mothers need only have lived in the U.S. continuously for a year before the birth of a child.

Changes to immigration law made in 1986 reduced the total residency time for fathers to five years, only two of which had to be after the age of 14.

By contrast, a child born in the United States, regardless of the parents’ nationality, is a U.S. citizen, as is a child born abroad to two American citizens.

Lower federal courts upheld Flores-Villar’s conviction and rejected his discrimination claims. Flores-Villar has previously been deported at least five times since he was convicted of importing marijuana when he was 22, the government said in court papers.

The Obama administration argued that the less stringent residency requirement in the 1986 law was one of several reasons for the court to stay out of the case.

The new requirement “substantially eliminates the risk” that young fathers like Flores-Villar’s will be unable to confer citizenship on their children, the government said.

The court ruled on a related issue in 2001, holding that it was all right to require American fathers, but not mothers, of children born out of wedlock and abroad to get a court order of establishing paternity or swear to it under oath.

The case is Flores-Villar, 09-5801.

Mark Sherman

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