This week’s topic is a recent Supreme Court decision involving gender-based differences in the requirements for individuals acquiring citizenship from a parent. You can read the full decision here: https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf.
The Immigration and Nationality Act establishes the rule for the acquisition of US citizenship of a child who was born abroad to a US citizen and a non-US citizen parent. Until 2012, the rule established that if the child’s parents were married, the US citizen parent should have lived in the US for 10 years prior to the child’s birth. Out of these 10 years, he should have lived in the US at least 5 years after the age of 14 for the child to acquire his US citizenship. This rule applied in the same manner to an unmarried US-citizen father of a child born abroad. However, if the mother is the US citizen, then her US citizenship can be transmitted to the child born abroad if she lived in the US for at least one year prior to the child’s birth. In 2012, Congress reduced the physical presence requirement in the general rule to 5 years prior to the child’s birth, out of which 2 years must be after the age of 14. The exception for unmarried US-citizen mothers remained the same.
In Sessions v. Morales-Santana, Morales-Santana was born in the Dominican Republic to an unwed US citizen father and a non-US citizen mother. His father lived in the US until he was 18 years old; thus, failed to meet the requirement of the general rule in force until 2012 (10 years in the US, at least 5 years after the age of 14). In 2000, the Government sought to remove Morales-Santana from the US due to criminal convictions since he was an “alien” and did not acquire US citizenship from his father (due to failure to comply with the physical presence rule). An immigration judge ordered Morales-Santana’s removal from the US. Morales-Santana sought to appeal the decision stating that the Government was violating the equal protection guarantee in the Constitution by not recognizing his acquired citizenship from his father. The Court of Appeals held that the different treatment between unmarried mothers and fathers of a child born abroad was unconstitutional, and established that Morales-Santana did acquire US citizenship from his father.
The case got to the Supreme Court, which held that the Supreme Court could not grant Morales-Santana citizenship. The Supreme Court stated that, when a rule violates the right to equal protection, there are two alternatives: strike down the rule and order its benefits not to be extended to the people it was intended to benefit, or extend the coverage of the rule to also benefit those who are harmed by exclusion. Ultimately, the Supreme Court decided that the exception for unmarried US-citizen mothers should not be extended to unmarried US-citizen fathers; rather, that exception should be eliminated. Therefore, the Supreme Court held that unmarried US-citizen mothers, as unmarried US-citizen fathers, should have to fulfill the requirement in the general rule for their child to acquire US citizenship.
Updates to Project Citizenship’s Partner Resources (04/28/2017)
This week’s FYI Friday comes with some good news! Thanks to Nate (copied on this email), a great third-year law student from Harvard who has volunteered with us over the past few weeks, the Partner Resources page of Project Citizenship’s website now contains an archive of (nearly) every FYI Friday/Wiggio email since 2014! The archive is located here: https://projectcitizenship.org//wiggio-archive/
In addition, as you may already know, various legal organizations have put together helpful charts listing the immigration consequences of state criminal convictions. We use the chart for Massachusetts daily when analyzing whether an applicant’s criminal history poses a risk for his or her naturalization application. Again, thanks to Nate, these charts for Massachusetts, New York, Connecticut, and about 20 other states can now be found on our website. These charts are located here: https://projectcitizenship.org//immigration-consequences-crime-state/
Form G-1256, Declaration for Interpreted USCIS Interview (06/07/2017)
Yesterday, USCIS posted Form G-1256, Declaration for Interpreted USCIS Interview, on their website. You can find both the form and its instructions at uscis.gov/g-1256. USCIS now requires this form for any applicant who brings an interpreter for an interview with USCIS.
This form should include the interpreter and applicant’s information, and should be submitted during interviews with USCIS. Please note that the interpreter should sign the form in the USCIS officer’s presence during the interview.