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Immigration Law Associates, PC

The Supreme Court Struck Down Gender-Based Citizenship Rule

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A child of a US-citizen father and a child of a US-citizen mother had different requirements to meet in order to qualify for citizenship. Eight Supreme Court Justices unanimously invalidated this difference as unconstitutional (Justice Gorsuch took no part in the case).

The issue arose when a child is born abroad to one US-citizen parent and one foreign parent. For the child to gain citizenship, the law required the US-citizen parent to have ten years of physical presence in the US prior to the child’s birth, at least five of which were after the parent was 14 years old. However, the law has an exception for US-citizen mothers, who only needed to live continuously in the United States for one year prior to the child’s birth.

Writing for the Court, Justice Ginsburg ruled the gender-based difference violated the Fifth Amendment’s Equal Protection clause because the government failed to proffer an “exceedingly persuasive justification” for the differentiation. However, the Court could not write a solution by itself. Therefore, it is still up to the legislature to find a solution by, for example, extending the exception to US-citizen fathers or invalidating the exception altogether.

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