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Justices weigh challenge to gender differences in immigration law

WASHINGTON — The Supreme Court on Wednesday grappled with issues of gender bias, judicial remedies and Congress’ power in an Equal Protection challenge to a law that makes it easier for a child of unmarried parents to obtain citizenship if the mother, rather than the father, is a U.S. citizen.

Petitioner Ruben Flores-Villar, who was born in Mexico but grew up in California, was denied citizenship because his father had lived in the United States for fewer than five years before Flores-Villar was born. Had his mother, instead, been a U.S. citizen, the residency requirement would have been just one year.

During oral arguments Wednesday, San Diego-based federal defender Steven Hubachek — who was appointed by the court to argue on Flores-Villar’s behalf — said the 1940 statute was based on antiquated notions of gender roles.

The statute “set up barriers to the transmission of citizenship by younger fathers, but not younger mothers,” Hubachek said. “They are based upon gender stereotypes that women, not men, would care for non-marital children.”

Justice Antonin Scalia asked whether it mattered that mothers actually are more likely to care for children.

“What separates a stereotype from reality?” Scalia asked.

Justice Ruth Bader Ginsburg jumped in.

“It is true in general,” she said, “but there are people who don’t fit that mold.”

Justice Stephen Breyer said that even if the law violates equal protection, it wasn’t clear that Flores-Villar would benefit.

“Why isn’t the remedy to say: ‘OK, whether it is the father or the mother, the general rule applies [and mothers and fathers] have to have lived in the United States for five years?’” Breyer asked.

“The remedy we are requesting is extension,” Hubachek said, noting that the law’s severability clause gives courts the option of striking out a discriminatory aspect of the law while keeping the rest intact.

Scalia said the requested relief was extraordinary.

“You are asking, I think, that the court pronounce your client to be a United States citizen,” Scalia said. “Have you any other case where a court has conferred citizenship on someone who, under the statutes as written, does not have it?”

“If the court doesn’t grant that remedy, that would leave an equal protection violation in place,” Hubachek said.

That would be true “unless we solve the violation the other way,” by applying the longer residency requirement to mothers, Scalia said.

“That would be no remedy at all,” Hubachek said.

“Any of the remedies that you are discussing with Justice Scalia involves this court in a highly intrusive exercise of the congressional power,” Justice Anthony Kennedy noted.

What relief is relief?