Discrimination in Immigration? SCOTUS Seemed Troubled

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By Kimberly Strawbridge Robinson

Nov. 9 — A discriminatory immigration law was in the cross hairs Nov. 9 at the U.S. Supreme Court ( Lynch v. Morales-Santana , No. 15-1191 U.S., argued 11/9/16 ).

The law, which makes it harder for unwed fathers to confer citizenship on their children born abroad than unwed mothers, seemed likely to fall after oral argument.

The justices spent most of the time trying to figure out what the remedy should be—should they “level up” and make it easier for both unwed mothers and fathers to confer citizenship, or should they “level down” and make it harder for both?

The court typically “levels up” when it corrects an equal protection violation, like the one at issue here, Justice Elena Kagan said.

But that would just create another equal protection problem—treating unwed parents differently than married ones, Justice Samuel A. Alito Jr. said.

It’s unclear how many people could be affected by the court’s ultimate decision, but the government suggested it could be in the thousands.

Similarly Situated?

The law at issue, 8 U.S.C. §1409—which has since been changed—applies only where one unwed parent is a U.S. citizen and the other is not.

The law’s distinctions between these mothers and fathers are meant to ensure that a child born abroad has a sufficient connection to the U.S. before conferring citizenship, the government’s attorney, Edwin S. Kneedler, of the Justice Department, Washington, said.

At the time of the child’s birth, married parents—both mothers and fathers—must have been physically present in the U.S. for at least 10 years to confer U.S. citizenship on their child, under 8 U.S.C. §1401. Additionally, five of those years must have been after the parent turned 14.

The rule is the same for unwed fathers.

But unwed mothers are “not typically similarly situated with respect to their legal status concerning the child at the moment of birth,” Kneedler said.

In the cases of married parents and unwed fathers, there are two nations competing for the child’s loyalties: the U.S. and the other parent’s county of citizenship, Kneedler said.

At the time the child is born, that competing-loyalty problem isn’t present when the mother is unwed, Kneedler said. That’s because fathers generally have to take affirmative steps to legitimize their child before they are considered the legal parent, he said.

So the law requires that unwed mothers have been present in the U.S. for only one “continuous” year to prove a sufficient connection to the U.S., Kneedler said.

Level Up or Down?

But the justices didn’t seem convinced that the unequal treatment was necessary, and instead turned their attention to what the remedy should be to cure the unconstitutional gender discrimination.

Assuming we find that the law is unconstitutional, should we level up or down, Justice Anthony M. Kennedy asked.

The court below leveled up, and only required the unwed citizen father to meet the less restrictive requirements.

“We generally have a rule that when we find an equal protection violation, we level up rather than level down,” Justice Elena Kagan said. “That’s been the court’s consistent practice.”

New Problem?

But that shouldn’t be the remedy here, Kneedler said.

The continuous one year requirement is the exception to the general rule that the parent must have been present in the U.S. for 10 years, he said.

There’s no evidence that Congress would have wanted to extend the exception if it knew it couldn’t have different rules for mothers and fathers, Kneedler said.

Moreover, adopting the less restrictive requirements would deepen and extend the equal protection problems, Alito said.

“Wouldn’t you have an anomaly that parents who are not married are preferred to parents who are married?” Justice Ruth Bader Ginsburg asked.

Instead of gender discrimination, we’d be dealing with legitimacy discrimination, Alito said.

But “if we try to level down,” the court will be leaving in place the very inequality that the individual here is complaining about, Kagan said.

The court can’t go back and “claw back” the citizenship of individuals who received it via the lower requirements. So the individual here would still be treated differently because of a gender distinction, she said.

That’s right, Stephen Broome, of Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, who argued for the individual challenging the law, said.

The government’s level down remedy is “no remedy” at all because “it would leave in place all of the gender discriminatory effects caused by this statute, Broome said.

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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