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Are U.S. Immigration Laws Biased Against Unmarried Dads?

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Federal law banned gender discrimination in the workplace in the 1970s, and for most purposes, it's illegal outside the workplace, too.

But a case that came before the Supreme Court this week shows gender discrimination still exists in immigration law in terms of residency requirements for unmarried fathers versus mothers.

The Sacramento Bee describes the case as follows: "The issue came before the court in the case of a deported drug dealer who was born in Tijuana, Mexico, in 1974 of a Mexican mother, but raised in San Diego by his American father. When Ruben Flores-Villar was about be deported to Mexico for the fourth time in 2006 for selling marijuana, he raised a new objection. He said he should be deemed a U.S. citizen because his father was 16 at the time of birth and an American citizen."

Flores-Villar's suit argues he has been unfairly denied U.S. citizenship because of gender bias in U.S. immigration laws.

Current federal law grants citizenship to any child born to an unmarried, foreign-born mother as long as the mother has lived in the United States for at least a year. But the child's unmarried father must have been in the United States for five years for the child to gain citizenship.


The resolution of the case could have widespread impact. It has tentacles that reach into two highly inflammatory issues in American law: citizenship for non-American-born children and gender discrimination. Conferring U.S. citizenship on any child other than one born to American parents on American soil is in and of itself a highly controversial topic that dominates some political debates in high-immigration states.

On top of this, federal law makes this bizarre distinction between the length of residency for an unmarried father versus that for an unmarried mother. The reason for the discrepancy lies in a tangled mass of changes made over time by Congress to immigration law. Those changes date back to the 1950s, when it was assumed all children were more likely to be raised by their mothers than their fathers. Even though that is still true, the gap is narrowing and more fathers are either primary caretakers or single parents.

But in Flores-Villar's case, there is yet another wrinkle in the law. According to the L.A. Times:

"For people born before 1986, their American fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14, in order for their citizenship to be passed on. Flores-Villar's father could not meet the second part of that requirement because he was only 16 when his son was born. American mothers need only have lived in the U.S. continuously for a year before the birth of a child. The 1986 changes to immigration law reduced the total residency requirement for fathers to five years, two of which after the age of 14."

This case is made more interesting by two additional twists. First, newly sworn-in Justice Elana Kagan recused herself from the decision because she worked on the case while she was at the Justice Department. That will hinder the liberal wing of the court's attempt to drop the five-year residency requirement for the unwed father down to one year, as it is for the unmarried mother.

The other twist is that, according to the Los Angeles Times, "Chief Justice John G. Roberts Jr. suggested the right remedy in this case may be to make it just as hard for unwed mothers to pass on their citizenship to a foreign-born child. "The remedy for an equal protection violation is to treat everybody the same . . . "

Justice Roberts might as well explode a nuclear bomb at the headquarters of The National Council of La Raza as hand down a decision along those lines. But he sure would expand his following among those want to limit immigration.

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7 Comments

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Ruth

LOVE the thinking of Roberts. I'm fed up with illegal aliens circumventing the system with loop holes and ACLU types waiting in the wings to enable them. If illegal aliens spent even 1/4 of the time attempting to become a legal citizen as they do marching around in circles about it, the respect gained by legal citizens would be well worth their while and themselves for their hard work to obtain citizenship. Does everyone assume that reform would make it easier for people to come here? The US may turn the tables on these advocates and this will be a much more tedious task than they claim it is. National Council of La Raza does NOT run the US, the legal citizens of the US, however, do. Duck, that "bomb" is about to go off.

November 13 2010 at 12:14 PM Report abuse +8 rate up rate down Reply
jtzeph

Roberts remedy is genius.

November 13 2010 at 9:16 AM Report abuse +6 rate up rate down Reply
waysidenj22

If you are here illegallllly then no matter what you broke the law and should be deported. There are many people in Africa, and Asia and Europe who can't have drinking water...They wait years to be able to come to America.

November 12 2010 at 5:47 PM Report abuse +7 rate up rate down Reply
1 reply to waysidenj22's comment
gerardo maldonad

Yes I agree if you break the law you should be held accountable that includes people that cheat on their taxes,drive drunk or buzzed without being caught,or by that matter any law does not matter how petty or irrelevant to the subject is

November 17 2010 at 4:38 AM Report abuse rate up rate down Reply
George & Nancy

There's a guy working on a house by me with a license plate of Sonora, Mexico. Is this telling me that we don't have anybody who can build a house in this country. with high unemployment, do we really find it necessary to get a sheet rocker from mexico?

November 12 2010 at 4:22 PM Report abuse +6 rate up rate down Reply
2 replies to George & Nancy's comment
gerardo maldonad

yes george and nancy, because the quality and speed of work mandates in a country where instant gratification is the common trade, if you hire a lets say black without color having to do anything with the matter, they will charge you the regular wages of a construction worker wich could be about give or take a few dollars $13 dollars per square foot when a mexican-american that lives in sonora wich there is a lot and let me tell you they live there without any permits or worries (because money talks and bs walks) they would charge half if not less than that and is all because the unions make it hard to hire anybody for less than the minimum wage requirement and that minimum wage requirement is not $6.50 per square foot i know because im a union worker and just because they have license plates from sonora does not mean they're mexican the cost of registering a car in mexico is a lot less than the u.s it all comes down to economics and smarts you can be a puppet or an individual that thinks about their family not only for today but for the future, this country is going down hill fast you cannot tell anybody in their right mind that you live in the best country in the world, come on lets take a look at our government.And by the way how is your chinese because if you're gonna be the american that you claim to be you will need to learn chinese or join the rest and learn spanish

November 17 2010 at 4:34 AM Report abuse -2 rate up rate down Reply
gerardo maldonad

yes george and nancy, because the quality and speed of work mandates in a country where instant gratification is the common trade, if you hire a lets say black without color having to do anything with the matter, they will charge you the regular wages of a construction worker wich could be about give or take a few dollars $13 dollars per square foot when a mexican-american that lives in sonora wich there is a lot and let me tell you they live there without any permits or worries (because money talks and bs walks) they would charge half if not less than that and is all because the unions make it hard to hire anybody for less than the minimum wage requirement and that minimum wage requirement is not $6.50 per square foot i know because im a union worker and just because they have license plates from sonora does not mean they're mexican the cost of registering a car in mexico is a lot less than the u.s it all comes down to economics and smarts you can be a puppet or an individual that thinks about their family not only for today but for the future, this country is going down hill fast you cannot tell anybody in their right mind that you live in the best country in the world, come on lets take a look at our government.And by the way how is your chinese because if you're gonna be the american that you claim to be you will need to learn chinese or join the rest and learn spanish

November 17 2010 at 4:34 AM Report abuse -2 rate up rate down Reply

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