Playing Favorites: Challenging Denials of U.S. Citizenship to Children Born Abroad to U.S. Same-Sex Parents
This Note will examine the legal landscape of U.S. citizenship by birth to those born abroad and will argue that current treatment of same-sex couples as giving birth “out of wedlock” violates not only the Constitution but also general principles of statutory interpretation. First, this Note will provide an overview of the INA’s statutory scheme, agency interpretations, and legislative history, and then will analyze the effect of Supreme Court and Ninth Circuit caselaw on the constitutionality of the State Department’s interpretation and application of the INA. Part II will compare definitions and presumptions of parentage under domestic and immigration law, examining what interests the government may have in affording differential treatment to children born abroad. Part III will assess the validity of the State Department’s actions under the Administrative Procedure Act (APA) and the Constitution. Finally, Part IV will conclude that there is no legitimate legal basis for denying children like Ethan their rightful citizenship by birth and will argue that the State Department’s interpretation of the INA should be amended to include same-sex married couples under the definition of “wedlock.”
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