Acquiring U.S. Citizenship at Birth When only One Unmarried Parent is a Citizen

Children born out of wedlock outside the United States to one citizen parent and one noncitizen parent face different requirements for acquiring U.S. citizenship, depending on the gender of the citizen parent. The Immigration and Nationality Act (INA) provides that the child must meet additional requirements to obtain U.S. citizenship when their father (but not their mother), is a citizen. The differential treatment depending on the gender of the unmarried parent citizen in determining the child’s citizenship was held to be constitutional by the U.S. Supreme Court in 2001.

Child Citizenship Act of 2000
The Child Citizenship Act of 2000 (CCA) governs the acquisition of U.S. citizenship by children born abroad. Specifically, children born outside the U.S. receive automatic citizenship where the following three conditions have been satisfied:

  1. At least one parent is a U.S. citizen (either by birth or naturalization);
  2. The child is under the age of 18 years; and
  3. The child is residing in the U.S., in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

However, where the child was born abroad and out of wedlock, some additional requirements might apply if only the father is a U.S. citizen.

Immigration and Nationality Act
Children born abroad to unmarried parents of different citizenships face unique citizenship issues depending upon the gender of the “citizen” parent. Under the INA, U.S. citizenship is automatic at birth for a child born to a citizen mother, provided that she has previously resided in the U.S. for at least one year. However, the INA imposes additional requirements for the child to acquire U.S. citizenship if it is the father who is a citizen.

Additional Requirements for Citizen Fathers and Noncitizen Mothers
Where a child is born outside the U.S. to a U.S. citizen father and a noncitizen mother, U.S. citizenship of the child is not automatic. In order to acquire citizenship, the INA requires clear and convincing evidence of a blood relationship between the child and the citizen father. Additionally, before the child reaches the age of 18, one of the following must occur:

  • The child must be legitimated under the law of his residence or domicile;
  • The father must acknowledge paternity of the child in writing or under oath; or
  • The paternity must be established by a court order.

The imposition of additional requirements based on the gender of the citizen parent sparked a constitutional challenge on the ground of denial of equal protection of the laws.

Equal Protection of the Laws Based on Gender
Under the U.S. Constitution, all citizens are entitled to equal protection of the laws. This means that the government is prohibited from enacting legislation which discriminates against a particular class of persons. In general, there are different standards which apply depending on the targeted class of individuals. For example, gender is a “quasi-suspect classification” and any government action which affects one gender more than another must be substantially related to an important government interest in order to be constitutional.

Nguyen v. INS
In Nguyen v. Immigration and Naturalization Service (2001), the U.S. Supreme Court considered whether the INA’s parental gender differentiation violated equal protection. Tuan Anh Nguyen was born in Vietnam to an unmarried couple; a Vietnamese mother and an American father. At age six, Nguyen came to live in Texas with his father and became a lawful permanent resident of the U.S. When he was 22, Nguyen was convicted of serious crimes and the U.S. government sought to have him deported as an alien. None of the additional paternity requirements had been satisfied prior to Nguyen turning 18 and he was thus ineligible for U.S. citizenship. Nguyen filed suit, arguing that the additional INA citizenship requirements for children born abroad and out of wedlock where only the father was a U.S. citizen, violated the equal protection clause.

Constitutionality of the INA Classification
The Supreme Court upheld the INA requirements as being constitutional. The majority found that a law which grants or does not grant automatic citizenship to children born abroad to unmarried parents depending on the gender of the citizen parent is justified. Requiring U.S. fathers of children born abroad to take additional steps to establish paternity was held to have promoted the important governmental interest of avoiding proof of paternity problems, which are obviously more difficult to resolve than establishing maternity.

In addition, the Court reasoned that it is more important to establish paternity in order to demonstrate an actual parent-child relationship exists, which was held to be inherent with mothers by virtue of the birthing process. In turn, this relationship provides evidence of a connection between the child and the United States. Finally, the additional requirements imposed by the INA were found not to be overly burdensome and are thus substantially related to important governmental interests.

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