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 -
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person's birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years -
(A) the person is legitimated under the law of the person's residence or
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent
. . .
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
Section 309 of the United States’ Immigration and Nationality Act (8 U.S.C. § 1409) confers citizenship on children of unmarried 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.
UPDATE: On 12 June 2017, the US Supreme Court handed down a ruling in Sessions v. Morales-Santana (formerly Lynch v. Morales-Santana) to address the sex discrimination in the Immigration and Nationality Act. Going forward, unmarried American fathers and mothers will have the same residency requirements in order to pass on citizenship to their children born abroad, although the new length of the residency is still to be determined by Congress. Previously, fathers had to satisfy a longer residency time period than mothers, which the court found unconstitutional. Written by Ruth Bader Ginsburg, this decision is consistent with international law and jurisprudence, which Equality Now and our global partners highlighted in our ‘friend of the court (amici curiae) brief’. While it is unfortunate that the sex discriminatory financial support requirement for a father remains as a condition for him giving his citizenship to a child born abroad and out of wedlock (not an issue in Session v. Morales-Santana), overall, the ruling represents real progress for both women and men in the movement for gender equality.
From the decision: "At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a nonmarital child."
On 3 October 2016, Equality Now, Human Rights Watch and eight other international human rights organizations and institutions filed an amicus curiae (“friend of the court”) brief in the case of Lynch v. Morales-Santana currently before the US Supreme Court. The case challenges the federal Immigration and Nationality Act’s sex discriminatory residency requirements for unmarried fathers to transfer their nationality to children born abroad. (Equality Now filed an amicus brief with partners in the 2011 Flores-Villar case on the same issue which resulted in a tie and reaffirmed the lower court’s decision finding the discrimination to be constitutional.) In the current case, the United States Court of Appeals for the Second Circuit in July 2015 found these requirements to be unconstitutional. The government appealed, however, and the US Supreme Court is scheduled to hear the case on 9 November 2016.
The amicus brief cites international law provisions on equality and nationality and provides examples of comparable court decisions as well as legislative progress towards equality in citizenship laws in other countries. It also highlights the US role at the United Nations and in its human rights reports in promoting equal rights for women and men to transfer their nationality to their children –which is contradicted by the government's appeal in this case. We hope the Supreme Court will consider the combined knowledge and expertise of the organizations from around the world on the brief.
We are very thankful to Professor Martha Davis, Counsel of Record for the brief, and to Hughes Hubbard & Reed LLP for their pro-bono legal support.
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.
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