Immigration-Wise…

Last Monday, June 12, 2017, the U.S. Supreme Court, in a landmark decision, found unconstitutional, a rule requiring a longer physical presence in the United States for U.S. citizen fathers than for U.S. citizen mothers to confer citizenship to children born out-of-wedlock abroad. The rule requires that U.S. citizen fathers live continuously in the U.S. for 5 years prior to the birth of a child born abroad to a non-citizen mother in order to confer citizenship. For the U.S. mothers, the physical presence requirement is one year. The Court found that the rule violated the Fifth Amendment’s guarantee of equal protection under the law, in that it created a distinction based on gender that favored mothers. The general rule, enacted in 1958, is found in 8 U.S.C. §1401(a)(7) and is applicable to married couples and requires the U.S. citizen parent to maintain 10 years of continuous physical presence in the U.S. (5 years of which must be attained after age 14) prior to the birth of the child born abroad in order to confer U.S. citizenship. Section 1409(a) renders the rule applicable to unwed fathers, but section 1409(c) creates an exception for mothers who only had to maintain 1 year physical presence in the U.S. In 2012 the statute was amended to require 5 years continuous physical presence for unwed fathers.

The Supreme Court ruling in Sessions v. Morales-Santana, made one week before Father’s Day, is timely and significant. The opinion, written by Justice Ruth Bader Gingsberg is deliberate and powerful. Justice Gingsberg addressed the historical biases against single fathers and the stereotypes which influenced U.S. immigration law. She quoted another important case, Obergefell v. Hodges, saying that “new insights and societal understandings can reveal unjustified inequality…that once passed unnoticed and unchallenged.” On June 12, 2017, the Court took notice, challenged and invalidated the unequal treatment of fathers under immigration law.

Have you ever heard the saying “Mommy’s baby, Daddy’s maybe?” Well it sums up the Congressional approach to immigration legislation. Congress, which has broad discretion over immigration and naturalization legislation, codified this assumption in several laws that favor unwed mothers and disenfranchised unwed fathers. Prior to 1986, a child could not obtain immigration benefits from an unwed natural father. A U.S. citizen or permanent resident father may now petition for his child born out-of-wedlock if he can show that a bonafide parent-child relationship existed before the child turned 21. To establish a bonafide parent-child relationship, the father must provide evidence of “emotional and/or financial ties.”

Until Congress recognized fathers, an unwed father’s relationship and legal rights to the child were never taken into consideration. This was particularly true in the case of adoptions, where immigration law considered a child released for adoption if the mother abandons the child, regardless of the father’s involvement in the child’s life. Up until last Monday, Congress enacted rules based on a presumption that the mother was the sole natural guardian of a child born-out-of wedlock. It was presumed that the father had no interest in the child and was not involved in the child’s life. Even though there has been progress, the stereotypes and notions of the roles of mothers and fathers persist in immigration law. The Morales-Santana decision will ensure that mothers and fathers are afforded equal protection under the law.

In order to satisfy the requirements of the Fifth Amendment’s Equal Protection Clause, the government must have an “exceedingly persuasive justification” to discriminate based on gender. The distinction between mothers and fathers “must serve an important government interest.” The justification that the government offered in Morales-Santana could not hold up under the heightened scrutiny applied to gender based classifications. The government asserted that it sought to ensure that a child born abroad to a foreign mother has a strong connection to the U.S. The law recognized the mother as the only parent at birth, and presumed that she would be the only one to convey to the child any sense of national identity, and that naturally, she would pass on her own national identity. But as the Court pointed out, a child born abroad to an unwed U.S. citizen mother who was continuously present in the U.S. for 1 year at any point in her life before the child was born, and who raised the child in the foreign country, was no more likely to have a stronger connection to the U.S. than a child born to a unwed U.S. citizen father who fell a few days short of the 5 year physical presence requirement, who established a parent-child relationship, and who raised the child in the United States.

The justification for a longer physical presence for fathers did not make sense. Here, Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic to a U.S. citizen father and Dominican Republic citizen mother. Jose Morales, the U.S. citizen father, lived in Puerto Rico all his life and only left to work as a builder-mechanic for a U.S. company in then U.S. occupied Dominican Republic. The problem is that he left Puerto Rico 20 days before his 19th birthday, and therefore failed to meet the 5 years after age 14 requirement. Mr. Morales is deceased, and his son Morales-Santana has gotten himself in some trouble and is facing deportation. He asserted U.S. citizenship based on his birth to a U.S. citizen parent – his father who added his name to his birth certificate, supported him and later married his mother. But under U.S. immigration law, an unwed father is not a parent until he proves that he has a bonafide relationship with the child before the child turns 21. And to confer citizenship, he must have resided continuously in the U.S. for 5 years prior to his child’s birth.

The burdens placed on unwed fathers are based on stereotypes and fixed notions about the abilities and roles of mothers and fathers. Justice Bader-Gingsberg wrote that “[a]ccording to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their non-marital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture.” Not only do laws based on stereotypes of unwed fathers disserve responsible fathers, they invariably punish innocent children.
Unfortunately for Morales-Santana, the Supreme Court’s ruling did not help him, as the Court decided that the 5 year, and not the 1 year requirement would apply to both mothers and fathers from now on, or until Congress legislates a different time period. The court reasoned that it could not adopt the 1 year requirement because it was an exception to the rule and not the general rule. It was the exception, and not the physical presence requirement that violated the Fifth Amendment. Further, the Court stated that is what Congress would have legislated had they been aware of the constitutional violation.

This case shows that immigrant families have to be ever mindful of the physical presence requirements of immigration law … just in case. It also serves as a reminder for lawful permanent residents to apply for citizenship as soon as the physical presence requirement is met. Another important point is that immigrant children can assert the rights of a deceased family member as long as he has a close relationship with the family member, and there is a hindrance (in this case, death) to the family member’s ability to assert the claim himself. Most importantly, fathers and mothers are now equal under immigration law.

Last Monday, June 12, 2017, the U.S. Supreme Court, in a landmark decision, found unconstitutional, a rule requiring a longer physical presence in the United States for U.S. citizen fathers than for U.S. citizen mothers to confer citizenship to children born out-of-wedlock abroad. The rule requires that U.S. citizen fathers live continuously in the U.S. for 5 years prior to the birth of a child born abroad to a non-citizen mother in order to confer citizenship. For the U.S. mothers, the physical presence requirement is one year. The Court found that the rule violated the Fifth Amendment’s guarantee of equal protection under the law, in that it created a distinction based on gender that favored mothers. The general rule, enacted in 1958, is found in 8 U.S.C. §1401(a)(7) and is applicable to married couples and requires the U.S. citizen parent to maintain 10 years of continuous physical presence in the U.S. (5 years of which must be attained after age 14) prior to the birth of the child born abroad in order to confer U.S. citizenship. Section 1409(a) renders the rule applicable to unwed fathers, but section 1409(c) creates an exception for mothers who only had to maintain 1 year physical presence in the U.S. In 2012 the statute was amended to require 5 years continuous physical presence for unwed fathers.

The Supreme Court ruling in Sessions v. Morales-Santana, made one week before Father’s Day, is timely and significant. The opinion, written by Justice Ruth Bader Gingsberg is deliberate and powerful. Justice Gingsberg addressed the historical biases against single fathers and the stereotypes which influenced U.S. immigration law. She quoted another important case, Obergefell v. Hodges, saying that “new insights and societal understandings can reveal unjustified inequality…that once passed unnoticed and unchallenged.” On June 12, 2017, the Court took notice, challenged and invalidated the unequal treatment of fathers under immigration law.

Have you ever heard the saying “Mommy’s baby, Daddy’s maybe?” Well it sums up the Congressional approach to immigration legislation. Congress, which has broad discretion over immigration and naturalization legislation, codified this assumption in several laws that favor unwed mothers and disenfranchised unwed fathers. Prior to 1986, a child could not obtain immigration benefits from an unwed natural father. A U.S. citizen or permanent resident father may now petition for his child born out-of-wedlock if he can show that a bonafide parent-child relationship existed before the child turned 21. To establish a bonafide parent-child relationship, the father must provide evidence of “emotional and/or financial ties.”

Until Congress recognized fathers, an unwed father’s relationship and legal rights to the child were never taken into consideration. This was particularly true in the case of adoptions, where immigration law considered a child released for adoption if the mother abandons the child, regardless of the father’s involvement in the child’s life. Up until last Monday, Congress enacted rules based on a presumption that the mother was the sole natural guardian of a child born-out-of wedlock. It was presumed that the father had no interest in the child and was not involved in the child’s life. Even though there has been progress, the stereotypes and notions of the roles of mothers and fathers persist in immigration law. The Morales-Santana decision will ensure that mothers and fathers are afforded equal protection under the law.

In order to satisfy the requirements of the Fifth Amendment’s Equal Protection Clause, the government must have an “exceedingly persuasive justification” to discriminate based on gender. The distinction between mothers and fathers “must serve an important government interest.” The justification that the government offered in Morales-Santana could not hold up under the heightened scrutiny applied to gender based classifications. The government asserted that it sought to ensure that a child born abroad to a foreign mother has a strong connection to the U.S. The law recognized the mother as the only parent at birth, and presumed that she would be the only one to convey to the child any sense of national identity, and that naturally, she would pass on her own national identity. But as the Court pointed out, a child born abroad to an unwed U.S. citizen mother who was continuously present in the U.S. for 1 year at any point in her life before the child was born, and who raised the child in the foreign country, was no more likely to have a stronger connection to the U.S. than a child born to a unwed U.S. citizen father who fell a few days short of the 5 year physical presence requirement, who established a parent-child relationship, and who raised the child in the United States.

The justification for a longer physical presence for fathers did not make sense. Here, Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic to a U.S. citizen father and Dominican Republic citizen mother. Jose Morales, the U.S. citizen father, lived in Puerto Rico all his life and only left to work as a builder-mechanic for a U.S. company in then U.S. occupied Dominican Republic. The problem is that he left Puerto Rico 20 days before his 19th birthday, and therefore failed to meet the 5 years after age 14 requirement. Mr. Morales is deceased, and his son Morales-Santana has gotten himself in some trouble and is facing deportation. He asserted U.S. citizenship based on his birth to a U.S. citizen parent – his father who added his name to his birth certificate, supported him and later married his mother. But under U.S. immigration law, an unwed father is not a parent until he proves that he has a bonafide relationship with the child before the child turns 21. And to confer citizenship, he must have resided continuously in the U.S. for 5 years prior to his child’s birth.

The burdens placed on unwed fathers are based on stereotypes and fixed notions about the abilities and roles of mothers and fathers. Justice Bader-Gingsberg wrote that “[a]ccording to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their non-marital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture.” Not only do laws based on stereotypes of unwed fathers disserve responsible fathers, they invariably punish innocent children.
Unfortunately for Morales-Santana, the Supreme Court’s ruling did not help him, as the Court decided that the 5 year, and not the 1 year requirement would apply to both mothers and fathers from now on, or until Congress legislates a different time period. The court reasoned that it could not adopt the 1 year requirement because it was an exception to the rule and not the general rule. It was the exception, and not the physical presence requirement that violated the Fifth Amendment. Further, the Court stated that is what Congress would have legislated had they been aware of the constitutional violation.

This case shows that immigrant families have to be ever mindful of the physical presence requirements of immigration law … just in case. It also serves as a reminder for lawful permanent residents to apply for citizenship as soon as the physical presence requirement is met. Another important point is that immigrant children can assert the rights of a deceased family member as long as he has a close relationship with the family member, and there is a hindrance (in this case, death) to the family member’s ability to assert the claim himself. Most importantly, fathers and mothers are now equal under immigration law.

Last Monday, June 12, 2017, the U.S. Supreme Court, in a landmark decision, found unconstitutional, a rule requiring a longer physical presence in the United States for U.S. citizen fathers than for U.S. citizen mothers to confer citizenship to children born out-of-wedlock abroad. The rule requires that U.S. citizen fathers live continuously in the U.S. for 5 years prior to the birth of a child born abroad to a non-citizen mother in order to confer citizenship. For the U.S. mothers, the physical presence requirement is one year. The Court found that the rule violated the Fifth Amendment’s guarantee of equal protection under the law, in that it created a distinction based on gender that favored mothers. The general rule, enacted in 1958, is found in 8 U.S.C. §1401(a)(7) and is applicable to married couples and requires the U.S. citizen parent to maintain 10 years of continuous physical presence in the U.S. (5 years of which must be attained after age 14) prior to the birth of the child born abroad in order to confer U.S. citizenship. Section 1409(a) renders the rule applicable to unwed fathers, but section 1409(c) creates an exception for mothers who only had to maintain 1 year physical presence in the U.S. In 2012 the statute was amended to require 5 years continuous physical presence for unwed fathers.

The Supreme Court ruling in Sessions v. Morales-Santana, made one week before Father’s Day, is timely and significant. The opinion, written by Justice Ruth Bader Gingsberg is deliberate and powerful. Justice Gingsberg addressed the historical biases against single fathers and the stereotypes which influenced U.S. immigration law. She quoted another important case, Obergefell v. Hodges, saying that “new insights and societal understandings can reveal unjustified inequality…that once passed unnoticed and unchallenged.” On June 12, 2017, the Court took notice, challenged and invalidated the unequal treatment of fathers under immigration law.

Have you ever heard the saying “Mommy’s baby, Daddy’s maybe?” Well it sums up the Congressional approach to immigration legislation. Congress, which has broad discretion over immigration and naturalization legislation, codified this assumption in several laws that favor unwed mothers and disenfranchised unwed fathers. Prior to 1986, a child could not obtain immigration benefits from an unwed natural father. A U.S. citizen or permanent resident father may now petition for his child born out-of-wedlock if he can show that a bonafide parent-child relationship existed before the child turned 21. To establish a bonafide parent-child relationship, the father must provide evidence of “emotional and/or financial ties.”

Until Congress recognized fathers, an unwed father’s relationship and legal rights to the child were never taken into consideration. This was particularly true in the case of adoptions, where immigration law considered a child released for adoption if the mother abandons the child, regardless of the father’s involvement in the child’s life. Up until last Monday, Congress enacted rules based on a presumption that the mother was the sole natural guardian of a child born-out-of wedlock. It was presumed that the father had no interest in the child and was not involved in the child’s life. Even though there has been progress, the stereotypes and notions of the roles of mothers and fathers persist in immigration law. The Morales-Santana decision will ensure that mothers and fathers are afforded equal protection under the law.

In order to satisfy the requirements of the Fifth Amendment’s Equal Protection Clause, the government must have an “exceedingly persuasive justification” to discriminate based on gender. The distinction between mothers and fathers “must serve an important government interest.” The justification that the government offered in Morales-Santana could not hold up under the heightened scrutiny applied to gender based classifications. The government asserted that it sought to ensure that a child born abroad to a foreign mother has a strong connection to the U.S. The law recognized the mother as the only parent at birth, and presumed that she would be the only one to convey to the child any sense of national identity, and that naturally, she would pass on her own national identity. But as the Court pointed out, a child born abroad to an unwed U.S. citizen mother who was continuously present in the U.S. for 1 year at any point in her life before the child was born, and who raised the child in the foreign country, was no more likely to have a stronger connection to the U.S. than a child born to a unwed U.S. citizen father who fell a few days short of the 5 year physical presence requirement, who established a parent-child relationship, and who raised the child in the United States.

The justification for a longer physical presence for fathers did not make sense. Here, Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic to a U.S. citizen father and Dominican Republic citizen mother. Jose Morales, the U.S. citizen father, lived in Puerto Rico all his life and only left to work as a builder-mechanic for a U.S. company in then U.S. occupied Dominican Republic. The problem is that he left Puerto Rico 20 days before his 19th birthday, and therefore failed to meet the 5 years after age 14 requirement. Mr. Morales is deceased, and his son Morales-Santana has gotten himself in some trouble and is facing deportation. He asserted U.S. citizenship based on his birth to a U.S. citizen parent – his father who added his name to his birth certificate, supported him and later married his mother. But under U.S. immigration law, an unwed father is not a parent until he proves that he has a bonafide relationship with the child before the child turns 21. And to confer citizenship, he must have resided continuously in the U.S. for 5 years prior to his child’s birth.

The burdens placed on unwed fathers are based on stereotypes and fixed notions about the abilities and roles of mothers and fathers. Justice Bader-Gingsberg wrote that “[a]ccording to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their non-marital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture.” Not only do laws based on stereotypes of unwed fathers disserve responsible fathers, they invariably punish innocent children.
Unfortunately for Morales-Santana, the Supreme Court’s ruling did not help him, as the Court decided that the 5 year, and not the 1 year requirement would apply to both mothers and fathers from now on, or until Congress legislates a different time period. The court reasoned that it could not adopt the 1 year requirement because it was an exception to the rule and not the general rule. It was the exception, and not the physical presence requirement that violated the Fifth Amendment. Further, the Court stated that is what Congress would have legislated had they been aware of the constitutional violation.

This case shows that immigrant families have to be ever mindful of the physical presence requirements of immigration law … just in case. It also serves as a reminder for lawful permanent residents to apply for citizenship as soon as the physical presence requirement is met. Another important point is that immigrant children can assert the rights of a deceased family member as long as he has a close relationship with the family member, and there is a hindrance (in this case, death) to the family member’s ability to assert the claim himself. Most importantly, fathers and mothers are now equal under immigration law.

Last Monday, June 12, 2017, the U.S. Supreme Court, in a landmark decision, found unconstitutional, a rule requiring a longer physical presence in the United States for U.S. citizen fathers than for U.S. citizen mothers to confer citizenship to children born out-of-wedlock abroad. The rule requires that U.S. citizen fathers live continuously in the U.S. for 5 years prior to the birth of a child born abroad to a non-citizen mother in order to confer citizenship. For the U.S. mothers, the physical presence requirement is one year. The Court found that the rule violated the Fifth Amendment’s guarantee of equal protection under the law, in that it created a distinction based on gender that favored mothers. The general rule, enacted in 1958, is found in 8 U.S.C. §1401(a)(7) and is applicable to married couples and requires the U.S. citizen parent to maintain 10 years of continuous physical presence in the U.S. (5 years of which must be attained after age 14) prior to the birth of the child born abroad in order to confer U.S. citizenship. Section 1409(a) renders the rule applicable to unwed fathers, but section 1409(c) creates an exception for mothers who only had to maintain 1 year physical presence in the U.S. In 2012 the statute was amended to require 5 years continuous physical presence for unwed fathers.

The Supreme Court ruling in Sessions v. Morales-Santana, made one week before Father’s Day, is timely and significant. The opinion, written by Justice Ruth Bader Gingsberg is deliberate and powerful. Justice Gingsberg addressed the historical biases against single fathers and the stereotypes which influenced U.S. immigration law. She quoted another important case, Obergefell v. Hodges, saying that “new insights and societal understandings can reveal unjustified inequality…that once passed unnoticed and unchallenged.” On June 12, 2017, the Court took notice, challenged and invalidated the unequal treatment of fathers under immigration law.

Have you ever heard the saying “Mommy’s baby, Daddy’s maybe?” Well it sums up the Congressional approach to immigration legislation. Congress, which has broad discretion over immigration and naturalization legislation, codified this assumption in several laws that favor unwed mothers and disenfranchised unwed fathers. Prior to 1986, a child could not obtain immigration benefits from an unwed natural father. A U.S. citizen or permanent resident father may now petition for his child born out-of-wedlock if he can show that a bonafide parent-child relationship existed before the child turned 21. To establish a bonafide parent-child relationship, the father must provide evidence of “emotional and/or financial ties.”

Until Congress recognized fathers, an unwed father’s relationship and legal rights to the child were never taken into consideration. This was particularly true in the case of adoptions, where immigration law considered a child released for adoption if the mother abandons the child, regardless of the father’s involvement in the child’s life. Up until last Monday, Congress enacted rules based on a presumption that the mother was the sole natural guardian of a child born-out-of wedlock. It was presumed that the father had no interest in the child and was not involved in the child’s life. Even though there has been progress, the stereotypes and notions of the roles of mothers and fathers persist in immigration law. The Morales-Santana decision will ensure that mothers and fathers are afforded equal protection under the law.

In order to satisfy the requirements of the Fifth Amendment’s Equal Protection Clause, the government must have an “exceedingly persuasive justification” to discriminate based on gender. The distinction between mothers and fathers “must serve an important government interest.” The justification that the government offered in Morales-Santana could not hold up under the heightened scrutiny applied to gender based classifications. The government asserted that it sought to ensure that a child born abroad to a foreign mother has a strong connection to the U.S. The law recognized the mother as the only parent at birth, and presumed that she would be the only one to convey to the child any sense of national identity, and that naturally, she would pass on her own national identity. But as the Court pointed out, a child born abroad to an unwed U.S. citizen mother who was continuously present in the U.S. for 1 year at any point in her life before the child was born, and who raised the child in the foreign country, was no more likely to have a stronger connection to the U.S. than a child born to a unwed U.S. citizen father who fell a few days short of the 5 year physical presence requirement, who established a parent-child relationship, and who raised the child in the United States.

The justification for a longer physical presence for fathers did not make sense. Here, Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic to a U.S. citizen father and Dominican Republic citizen mother. Jose Morales, the U.S. citizen father, lived in Puerto Rico all his life and only left to work as a builder-mechanic for a U.S. company in then U.S. occupied Dominican Republic. The problem is that he left Puerto Rico 20 days before his 19th birthday, and therefore failed to meet the 5 years after age 14 requirement. Mr. Morales is deceased, and his son Morales-Santana has gotten himself in some trouble and is facing deportation. He asserted U.S. citizenship based on his birth to a U.S. citizen parent – his father who added his name to his birth certificate, supported him and later married his mother. But under U.S. immigration law, an unwed father is not a parent until he proves that he has a bonafide relationship with the child before the child turns 21. And to confer citizenship, he must have resided continuously in the U.S. for 5 years prior to his child’s birth.

The burdens placed on unwed fathers are based on stereotypes and fixed notions about the abilities and roles of mothers and fathers. Justice Bader-Gingsberg wrote that “[a]ccording to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their non-marital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture.” Not only do laws based on stereotypes of unwed fathers disserve responsible fathers, they invariably punish innocent children.
Unfortunately for Morales-Santana, the Supreme Court’s ruling did not help him, as the Court decided that the 5 year, and not the 1 year requirement would apply to both mothers and fathers from now on, or until Congress legislates a different time period. The court reasoned that it could not adopt the 1 year requirement because it was an exception to the rule and not the general rule. It was the exception, and not the physical presence requirement that violated the Fifth Amendment. Further, the Court stated that is what Congress would have legislated had they been aware of the constitutional violation.

This case shows that immigrant families have to be ever mindful of the physical presence requirements of immigration law … just in case. It also serves as a reminder for lawful permanent residents to apply for citizenship as soon as the physical presence requirement is met. Another important point is that immigrant children can assert the rights of a deceased family member as long as he has a close relationship with the family member, and there is a hindrance (in this case, death) to the family member’s ability to assert the claim himself. Most importantly, fathers and mothers are now equal under immigration law.

One thought on “Immigration-Wise…

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