Illegitimacy and Immigration

Modern constitutional law provides substantial protection to children whose parents are not married; however, immigration law still recognizes distinctions between children who are and who are not ‘‘born out of wedlock.’’ Thus, while the Supreme Court has subjected state laws that discriminate against nonmarital children to heightened scrutiny under the Fourteenth Amendment’s equal protection clause, it has largely deferred to Congress’s plenary power over immigration, upholding such distinctions to the extent that they purportedly reflect the legislature’s reasonable policy choices. For example, fathers of marital children are not required to establish that they have a bona fide relationship with their children, a requirement fathers of nonmarital children must fulfill. Immigration law also recognizes gender distinctions between fathers and mothers of nonmarital children. Mothers of nonmarital children, unlike fathers, need not establish a bona fide relationship with their children: that they were present at the birth suffices.

While arguably serving the purpose of preventing the filing of fraudulent immigration petitions, laws that burden nonmarital children have been criticized not only for codifying stereotypical distinctions deemed unconstitutional when enacted by state and local legislatures, but also for perpetuating the commodification of children who depend on their parents for immigration benefits. Critics applaud efforts to give a more meaningful voice to children’s perspectives in developing a fair and equitable immigration policy. But there has been some progress. In 1995, Congress amended the immigration code, replacing the terms ‘‘legitimate’’ and ‘‘illegitimate’’ with ‘‘child born in wedlock’’ and ‘‘child born out of wedlock,’’ respectively.

VICTOR C. ROMERO

References and Further Reading

• Chemerinsky, Erwin. Constitutional Law: Principles and Policies, 2nd ed. New York: Aspen Law and Business, 2002.
• Fragomen, Austin T., and Steven C. Bell. Immigration Fundamentals: A Guide to Law and Practice, Fourth Edition. New York: Practice Law Institute, 2004.
• Krause, Harry D., Equal Protection for the Illegitimate, Michigan Law Review 65 (1967): 477–505.
• Thronson, David B., Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law, Ohio State Law Journal 63 (2002): 979–1016.

See also Fiallo v. Bell, 430 U.S. 787 (1977); Sex and Immigration