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Supreme Court to Decide Whether a Child’s Acquisition of Citizenship Based on the Different Requirements for Mother’s and Father’s Length of Residency Prior to Birth Violates the Constitution

Sep 22, 2010 | Supreme Court Litigation

On November 10, 2010, the United States Supreme Court will hear oral arguments in the case of Flores-Villar v. United States (09-5801), where it must decide whether children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth.  If the citizen parent is the father, the period is five years; if it is the mother, the period is one year. Does this differentiation violate the Equal Protection Clause?

This case arose in the Ninth Circuit, where Ruben Flores-Villar raised a challenge under the Equal Protection Clause of the Fifth Amendment on the basis of age and gender requirements of two former laws under the Immigration and Nationality Act, 8 U.S.C. sections 1401(a)(7) and 1409 (1974), which required a 5-year residency requirements after the age of 14 for fathers, but only required 1-year residency requirement for mothers, before a child born abroad out of wedlock may be deemed to have acquired citizenship at birth.  The Ninth Circuit court concluded that the differentiation in the gender and age requirements did not violate the Constitution.

We will keep you posted on the developments in this case after the oral arguments!

Ruchi Thaker