Children born to parents that are not married is the ever increasing modern phenomena in our industrialized world. Many societies are changing their views and disfavor discrimination among children born to single parents and children born to married parents. This reflects a proposition that a child should not be responsible for the deeds (or misdeeds) of its parents. In the immigration context, such change can result in the U.S. citizenship applicability for children born to a single parent outside of the United States, if one of the parents is the United States citizen.
In Saldana v. Holder, Fifth Circuit elaborated on U.S. citizenship applicability for children born outside of the United States, to a single parent, where one parent was the U.S. citizen. To acquire citizenship under such circumstances, a child must show two things:
- That the child was “legitimated” before the age of 21 under the laws of the locality where the child resided or was domiciled, and
- before the child’s birth, child’s parent – one holding the U.S. citizenship – had ten years of residence in the U.S., at least five of which were after the age of 14.
Residency requirement under part two (2) is shown through documents and is relatively easy. First part, however, dealing with legitimacy, is more tricky. Legitimation is “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” This means that if the law of child’s jurisdiction does not treats children born from married parents in the same manner as the children born from a single parent that child is legitimated. Capitalizing on Saldana’s case, the law “legitimates” children if:
- Does not have separate laws for children in- and out-of-wedlock; and
- Does not have provisions encouraging parents to marry each other after the birth of a child.
However, even if the local laws have separate provisions, the focus is on treatment. Accordingly, Court looked favorably at the practice of providing birth certificates by the Civil Registry officials to children of single parent, where a parent placing child’s name on birth certificate is the U.S. citizen. If Civil Registry officials permit registration of the surname reflecting that of the U.S. citizen parent, that is another plus. If laws give inheritance and support rights to children born from single parents, these laws also have a legitimization effect. Further, if the laws have no distinction between treatment of children (legitimate v. illegitimate), or there is legal history that abolished such distinction, then, first part is probably satisfied.
In sum, this opinion is a good reading and good reflection of modern realities of life: mobile society with less roots to a particular place of dwelling, and lesser ties to the traditional familial pattern.