United States

The Immigration and Nationality Act

Section 309 of the United States’ Immigration and Nationality Act (8 U.S.C. § 1409) confers citizenship on children of U.S. citizen fathers and noncitizen mothers born outside the U.S. only if they meet certain requirements, including their father’s guarantee of financial support and longer residency requirements than for U.S. citizen mothers.

Section 309. Children born out of wedlock.

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 301 [granting United States citizenship] shall apply as of the date of birth to a person born out of wedlock if -


The law cited above, codified at 8 U.S.C.§1409, was challenged in Miller v. Albright, 523 U.S. 420, but upheld on procedural grounds by the United States Supreme Court in 1998. Justice Ruth Bader Ginsburg wrote in her dissenting opinion:

“The law at issue might have made custody or support the relevant criterion. Instead, it treats mothers one way, fathers another, shaping government policy to fit and reinforce the stereotype or historic pattern. . . . Even if one accepts at face value the Government's current rationale, it is surely based on generalizations (stereotypes) about the way women (or men) are . . . One can demur to the Government's observation that more United States citizen mothers of children born abroad out of wedlock actually raise their children than do United States citizen fathers of such children.  As Justice Breyer has elucidated, this observation does not justify distinctions between male and female United States citizens who take responsibility, or avoid responsibility, for raising their children.”

The law was again challenged before the United States Supreme Court in the case Nguyen v. INS, 533 U.S. 53 (2001), which held that the law does not violate the equal protection guarantee of the United States Constitution. In her dissenting opinion Justice O’Connor wrote “[i]ndeed, the majority’s discussion may itself simply reflect the stereotype of male irresponsibility that is no more a basis for the validity of the classification than are stereotypes about the ‘traditional’ behavior patterns of women.”

In June 2010, Equality Now, Human Rights Watch and other human rights organizations and institutions filed an amicus curiae brief at the United States Supreme Court challenging another section of this discriminatory statute which requires a longer residency period for fathers than mothers to pass their nationality to their children born abroad and out of wedlock. However, the U.S. Supreme Court in its decision of 13 June 2011 in Flores-Villar v. United States, reaffirmed, without any opinion or explanation, the decision in the lower court upholding these discriminatory provisions.

Contact Information: 

President Barack Obama
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Washington, DC 20500
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Email: president@whitehouse.gov
Twitter: @BarackObama

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