Supreme Court Hears Gender Rights Case

The high court will decide an unusual immigration case.

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The high court will decide an unusual immigration case.

In 1974, Ruben Flores-Villar was born to unmarried parents in Tijuana, Mexico. When he was 2 months old, his grandmother and 16-year-old American father brought him to San Diego, where he grew up. His mother, a Mexican citizen, took no part in his upbringing.

Although his father is a U.S. citizen, Flores-Villar has found himself caught up in a twist in U.S. immigration law, which the Supreme Court heard arguments about this week. At issue in the highly technical case is a discrepancy in immigration law that gives different rights to mothers and fathers who have children out of wedlock. The court's newest justice, Elena Kagan, recused herself from the case because she dealt with it earlier when she was solicitor general.

Flores-Villar may be a classic example of the failings of the country's "catch and release" immigration system, by which illegal immigrants are deported only to return to the United States, get caught, and be deported again. But Flores-Villar is an unusual plaintiff in a gender-discrimination case. Between 1998 and 2005, he was deported six times for entering the United States illegally. In 2006, after his seventh arrest, his defense against the deportation order was to claim that he had acquired U.S. citizenship at birth through his father.

His claim was denied because under the law at the time, fathers of out-of-wedlock children must have lived in the country for at least 10 years (five of which had to be after their 14th birthdays) before being able to transfer citizenship to their children. Charles Roth, the National Immigrant Justice Center's director of litigation, which filed briefs in support of Flores-Villar, estimates that this law snares thousands of people each year.

In this instance, since his father was only 16, Flores-Villar claims that the standard was impossible to meet. Furthermore, he argues that the discrepancy between the rules for mothers and fathers violates the equal protection clause under the 14th Amendment. Experts say that the constitutionally-sticky point here is the different standard for mothers, who need to only have lived in the country for a single year to convey citizenship to their children. This rule exists to prevent children from being born "stateless." This could happen if a child was born to an unwed, recently naturalized, U.S. citizen mother in a country that only recognizes blood-line citizenship.

Supporters of the current law note that Congress and the president have broad constitutional latitude to set immigration policy free from judicial scrutiny—the so-called Plenary Powers Doctrine. "The government should have the power to set the citizenship rules as it sees fit," says Michael Hethmon, general counsel of the Immigration Reform Law Institute, which filed briefs in support of the government.

The Supreme Court has upheld other laws that impose differing requirements based on gender. And two lower courts have ruled against Flores-Villar, noting that the different gender rules furthered the government's legitimate goal of avoiding having children born "stateless." The lower courts decided that such cases justify the lower bar for mothers. During oral arguments this week, several justices appeared troubled over the discrepancy between mothers and fathers, but they also seemed to concur that setting the criteria for such citizenship decisions was Congress's to make.