The Third Circuit has determined that the laws governing transmission of citizenship to a child born out of wedlock to a U.S.-citizen father, whose mother is deceased, and who was born in a jurisdiction where the death of the mother legally precludes the father from legitimizing the child, violate equal protection.
Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. Under the immigration laws, a naturalized mother can transmit her citizenship to her out-of-wedlock child, regardless of whether the father is alive; whereas a naturalized father in the same position has the additional requirement of having to legitimate the child in order to transmit his citizenship. Thus, the petitioner in this matter was left unable to receive citizenship from his father because his mother was deceased, eliminating the only avenue of legitimation in the Dominican Republic.
The court declared that the petitioner is, in fact, a U.S. citizen, by applying the standards applicable to children born out of wedlock to U.S.-citizen mothers to his situation.
The full text of Tineo v. Attorney General can be found here: