Wednesday, August 15, 2018

Who's Your (U.S. Citizen) Daddy?

The Second Circuit decided a very interesting case this week, concerning deportation proceedings against a man whom, it turns out, is a U.S. citizen. The litigant, Levy Jaen, was born abroad to a married couple; he and his family moved to the United States in 1988 when Jaen was 15. The husband was a U.S. citizen, and Jaen's father satisfied all the other requirements through which his citizenship would pass down to his son.

The problem was that Jaen's biological father was not the man her husband was married to. And the biological father (with whom Jaen's mother had an extra-marital affair) was not a U.S. citizen. So the question before the court was who, for the purpose of the federal statute governing citizenship in cases like Jaen's, was Jaen's "father"?

The court concluded that under well-settled principles of common law, the "presumption of legitimacy" that attaches to children born to married couples, Jaen's "father" is assumed to be the man married to his mother (the linchpin precedent for this proposition is a well-known family law case, Michael H. v. Gerald D., authored by Justice Scalia). And because Jaen's father was a U.S. citizen (and satisfied all other statutory requirements for transmitting his citizenship), Jaen was too -- and therefore could not lawfully be deported.

This is a happy ending, though it of course raises the question of circumstances where the facts are reversed (the biological father is a U.S. citizen but the "legitimate" father is not). Moreover, it is a happy ending to a grim tale -- Jaen was imprisoned for the entirety of his immigration proceedings and appeals, notwithstanding the fact that he had a colorable claim to citizenship that ended up being vindicated.

But a happy ending is a happy ending. Also, a shout out to my old firm Covington & Burling, which was on the brief for this case representing Mr. Jaen.

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