 COMMENTARY: SUPREME COURT, INS DEAL DOUBLE BLOW TO CHILDREN, BY AMY BALLENTINE
Two important things for immigrant children happened this week – the release of regulations for the Child Citizenship Act of 2000 and the Supreme Court decision in Nguyen v. INS. Both should the subject of reflection and analysis for what they really mean for children.
The Child Citizenship Act is, for the most part, a wonderful law. Responding to a growing number of stories about long time permanent residents who had been adopted by US citizens who were facing deportation because they never became citizens, Rep. William Delahunt (D-MA) sponsored the bill to provide automatic citizenship to such children, making a reality what many parents believed already happened – that their children were automatically US citizens. The law applies equally to both biological and adopted children, and should go a long way to ending the deportation of people who are, for all intents and purposes, Americans.
However, as with so many laws that seem to be good on the surface, once the INS got its hands on the Child Citizenship Act, problems emerged. While the statute makes no reference to any requirement regarding the marital status of the child’s parents, the regulation does, and in a way that is so narrow it could end up denying many children born out of wedlock the benefits of US citizenship.
The regulations require that a child born out of wedlock be “legitimated” by the US citizen parent. Nowhere in the regulations is any other method for formalizing the relationship between a parent and child born out of wedlock mentioned, although other methods are commonly allowed in immigration law. Indeed, in the law at the heart of this week’s Supreme Court case, in addition to formal legalization, an affirmation of paternity under oath or a court order of paternity are allowed.
In a number of countries, the only way a child can be legitimated is by the marriage of his or her natural parents. As currently written, the regulation would prevent children born out of wedlock in these countries from gaining the US citizenship to which they are otherwise entitled unless their parents married. While it is widely accepted that the ideal family structure is a two parent family, US law should certainly not require a couple to marry in order to ensure a child’s citizenship. In short, this requirement punishes the child by withholding US citizenship based solely on a circumstance completely beyond his or her control.
The regulation also states that even when the child is living with both natural parents, the child is in the parents’ legal custody only if the parents are married. In recent years the number of families who are “traditional” in every way except that the man and woman have chosen to not enter into a formal marriage has grown significantly. The children of such unions will, under this regulation, not be able to acquire US citizenship unless their parents marry. Again, this punishes the child based solely on the actions of his or her parents.
Even more disturbing than the Child Citizenship Act regulation is the Supreme Court ruling in Nguyen v. INS. In that case the Court ruled that requiring the father of a child born abroad and out of wedlock to take additional steps to secure citizenship for the child, while the mother has to take no such steps does not violate Equal Protection standards. While there is an undeniable difference in the roles of men and women with regard to the birth of a child, that is the only area in which such a difference exists. Simply giving birth to a child does not ensure that a mother will ever have a relationship with the child, and simply because a father does not give birth to a child does not mean that he will not have a relationship with the child.
To be sure, Tuan Anh Nguyen and his father Joseph Boulais did not follow the requirements of the law necessary to pass citizenship to Nguyen. But from the time Nguyen was six he lived with his father in the US. Boulais was the only parent Nguyen had, and he provided not only financial support, but all the other things a parent does. There was no legal legitimation or paternity order, but in every other sense of the word, Boulais was Nguyen’s father.
The Supreme Court’s opinion was based on some of the worst stereotypes about men and their relationship to their children, stereotypes that were clearly proven invalid by Boulais’ actions toward his child. Not only was the decision based on such stereotypes, the result again punishes a child for the actions of the father. Nguyen could not do anything about the circumstances of his birth. And now, because of it, he faces not deportation, because Vietnam seldom accepts deportees from the US, but a lifetime in INS detention.
This week the Fifth Circuit also released a decision dealing with children and citizenship, finding that a child was not entitled to derivative naturalization when only one parent naturalized before the child was 18 because the parents, while not living together, declined to obtain a judicial divorce because of their religious beliefs.
The events of this week seem to indicate that while much is made of “family values” and the importance of children, families and children will continue to be torn apart by US immigration laws.
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