The Immigration and Nationality Act (INA) provides that almost anyone born within the territorial jurisdiction of the United States is a U.S. citizen by birth, also known as “birthright citizenship.” Individuals who were born outside the U.S. may be eligible to claim birthright citizenship if at least one parent was a U.S. citizen who meets certain residency requirements. If an individual was born outside the U.S. to an unwed U.S. citizen parent, more stringent residency requirements apply, but only if the father is the U.S. citizen. A man born in the Dominican Republic to unwed parents, with a U.S. citizen father, challenged the constitutionality of this provision. The U.S. Supreme Court ruled that it violates the Equal Protection Clause of the Fifth Amendment, although the court’s solution was ultimately not beneficial to the respondent. Sessions v. Morales-Santana, 582 U.S. ___ (2017).
If a person’s mother was a U.S. citizen at the time of their birth outside the U.S. and was not married to their father, they are a citizen by birth as long as the mother had at least one year of continuous physical presence in the U.S. before the birth. 8 U.S.C. § 1409(c). The standard is very different, however, if the father was a U.S. citizen, the mother was not, and they were not married. In order for the person to have birthright citizenship, the father must have “a blood relationship [with the person] established by clear and convincing evidence,” must have “agreed in writing to provide financial support for the person” during their childhood, and must have acknowledged paternity or been adjudicated to be the father prior to the person’s 18th birthday. Id. at § 1409(a).
The respondent in Morales-Santana challenged a deportation order, arguing in part that § 1409(a) was unconstitutional because it discriminated against individuals born to unwed U.S. citizen fathers. He was born in the Dominican Republic to a U.S. citizen father who met all but one of the statutory requirements, missing the five years of U.S. residency by only 20 days. The Second Circuit Court of Appeals ruled that this part of the statute was unconstitutional, distinguishing the case from prior rulings affirming its constitutionality. See, e.g. Miller v. Albright, 523 U.S. 420 (1998).