The question the Supreme Court will consider on November 9, 2016, is whether it is a violation of the United States Constitution for the citizenship of a child born to unmarried parents to differ based on the gender of a parent. As it stands now, U.S. law makes it more difficult for children of U.S. citizen fathers than children of U.S. citizen mothers to obtain derivative citizenship when the child is born abroad. The Supreme Court will decide whether this is constitutional.

If the Court upholds the Second Circuit decision in favor of equal protection for children of citizen fathers, it could result in citizenship for thousands of individuals born abroad to U.S. citizen fathers, and may provide remedies to individuals currently facing deportation.

Case Overview: Lynch v. Morales-Santana, 15-1191

Luis Ramon Morales-Santana was born in 1962 in the Dominican Republic. His parents were unmarried, although married 8 years later. His father was an American citizen and his mother a Dominican Republic citizen. The law at the time stated a child born abroad to an unwed American citizen father and noncitizen mother only had citizenship at birth if the citizen father was physically present in the United States (or one of its possessions) for more than 10 years at some point prior to the child’s birth—and at least 5 of these years had to be after the citizen father was 14 years old.

Morales-Santana’s father was in Puerto Rico until 20 days before his 19^th birthday (20 days short of the 10-year requirement that would have automatically conferred citizenship to Morales-Santana at birth). Because of this 20–day gap, Morales-Santana’s father didn’t meet the requirements to automatically give Morales-Santana U.S. citizenship upon birth. When Morales-Santana’s parents married 8 years later, Morales-Santana was “legitimated” by his father’s citizenship—but not enough to obtain full citizenship because of the law described above. Morales-Santana did become a “lawful permanent resident” at the time of his parent’s marriage, but this status significantly limits rights compared to full citizenship.

In 2000, Morales-Santana was placed in “removal proceedings” (proceedings to “remove” the noncitizen individual from the U.S.) because he had been convicted of various felonies. At that point, Morales-Santana argued to the Immigration Officer that he should not be removed because he had derivative citizenship from his father.

Morales-Santana argued that the derivative-citizenship law in effect for unwed parents violated the Equal Protection Clause of the Fifth Amendment. In other words—if Morales-Santana’s mother had been the U.S. citizen and not his father, he would have been a citizen at birth and not removable. Morales-Santana said this difference based solely on the gender of his citizen parent was unconstitutional. (There were requirements for physical presence for unwed citizen mothers, but they only required the mother’s actual presence in the United States for one year at any point prior to the child’s birth. Morales-Santana’s father met that less-stringent requirement).

The Bureau of Immigration Appeals did not agree with Morales-Santana’s argument and continued to try to remove him from the U.S. Morales-Santana appealed to the United States Court of Appeals for the Second Circuit. That Court reversed the Bureau of Immigration Appeals and held the gender-based difference in the physical presence requirement did violate the Equal Protection Clause of the Fifth Amendment. The Court then granted Morales-Santana citizenship. The United States (through Attorney General Loretta Lynch) appealed that decision to the United States Supreme Court. Oral Argument will be heard on the case on November 9.

The Court now has two questions to decide: 1) the Equal Protection Argument described above and 2) whether the Court of Appeals for the Second Circuit can actually grant U.S. citizenship to Morales-Santana, when there is no statute allowing this.