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

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.