Today, the UNROW Human Rights Impact Litigation Clinic at American University Washington College of Law filed a petition for Writ of Certiorari to the U.S. Supreme Court challenging, on Equal Protection grounds, a federal statute that denies automatic derivative citizenship to a child based on his illegitimacy and the sex of his naturalizing parent, while providing citizenship to other classes of children.
UNROW’s client, Mr. David Johnson, was born in Jamaica to unmarried parents. Apart from the day of his birth, Mr. Johnson never saw or interacted with his mother. When Mr. Johnson was seven years old, his mother declared in writing that she relinquished all her parental rights and permitted Mr. Johnson to immigrate to the United States with his father, who was raising Mr. Johnson entirely on his own. Mr. Johnson’s father became a naturalized citizen when Mr. Johnson was eight years old, and he believed that his son would automatically derive U.S. citizenship under the federal statute that governed at the time. The U.S. government, however, initiated removal proceedings against Mr. Johnson repeatedly over the course of ten years, arguing that Mr. Johnson never derived citizenship and was, instead, a removable alien.
Mr. Johnson is asking the Supreme Court to examine the constitutionality of 8 U.S.C. § 1432(a)(3). This statute completely bars illegitimate children from automatically deriving citizenship when their fathers naturalize, even though it allows the children of married parents or illegitimate children of naturalized mothers to automatically become citizens. The U.S. Court of Appeals for the Fourth Circuit upheld Mr. Johnson’s removal in a 2-1 decision, dismissing Mr. Johnson’s Equal Protection claim. It concluded that there was no Equal Protection violation because Congress had a rational basis for enacting the law. By applying rational basis review, the Fourth Circuit ignored Supreme Court rulings requiring courts to use intermediate scrutiny to analyze laws that treat people differently on the basis of illegitimacy and sex. The dissenting judge criticized the majority for upholding a law that discriminates against an illegitimate child and his unmarried father and that perpetuates archaic stereotypes about how they are less deserving of rights.
Mr. Johnson spent over two and a half years in immigration detention while the UNROW Clinic fought for his release. This summer, the Department of Homeland Security removed Mr. Johnson to Jamaica, a country he had not seen in almost 40 years.
By petitioning the Supreme Court, Mr. Johnson hopes to bring this archaic law before the highest court of the land. But for this law, Mr. Johnson would be a U.S. citizen and would be free to live his life in the only country he knows with his father, the only parent he has ever known. The Supreme Court has shown recent interest in immigration cases, granting certiorari in Flores-Villar v. United States, a case that also raised issues of sex-based discrimination. The reported increase in wrongful deportations of U.S. citizens provides an additional reason for the Supreme Court to closely scrutinize laws that are not only discriminatory but have a devastating impact by breaking up U.S. families.
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