The U.S. Supreme Court has agreed to decide whether a man born outside the U.S., out of wedlock, to a U.S. citizen father and a noncitizen mother could benefit from birthright citizenship. A decision in this case can mean protection from deportation for many. Lynch v. Morales-Santana, 804 F.3d 520 (2d Cir. 2015), cert. granted (U.S. June 28, 2016) (No. 15-1191).

Birthright citizenship laws have changed throughout the years, and when deciding whether someone is entitled to citizenship by birth, one must review the laws in place at the time of his birth. Luis Ramon Morales-Santana was born outside the U.S. to unwed parents – his mother was a noncitizen and his father was a U.S. citizen. At that time, the laws in place prohibited the transmission of citizenship to Morales-Santana by his U.S. citizen father.

The U.S. Court of Appeals for the Second Circuit, in New York, granted Morales-Santana citizenship, ruling that fathers should have the same benefits as mothers under the statute. The Court held that the citizenship rule applied “archaic and overbroad stereotypes” to parenting roles for children born to unwed parents and violated equal protection rights. The U.S. Department of Justice asked the Supreme Court to reverse this opinion, arguing that a court cannot create new citizenship rules and regulations.

Citizenship laws can be very confusing. Under current citizenship laws for children born out of wedlock to a U.S. citizen father and a noncitizen mother, the child benefits from birthright citizenship if the father is physically present in the U.S. five years prior to the child’s birth, two of which are after the age of 14 (military service counts). The child can also benefit from birthright citizenship if a blood relationship is established, the father agrees to support the child until he or she is 18, and, while the child is under 18, one of three factors is met: (1) the child is legitimated; (2) the father acknowledges paternity; or (3) paternity is established by court adjudication.

The Supreme Court reviewed a similar case several years ago, when the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, upheld the citizenship transmission rules. At that time, Justice Elena Kagan had to recuse herself, and the decision was 4 – 4.

Jackson Lewis will report on the Supreme Court’s decision, expected by June 2017. If the Court upholds the Second Circuit decision, ruling in favor of equal protection for fathers, it could result in citizenship rights for thousands of individuals born abroad to U.S. citizen fathers and may provide remedies to individuals currently facing deportation.