Tineo v. AG—immigration / equal protection—reversal—Greenaway Jr.

Today’s lone precedential Third Circuit case involves an interesting gender-based equal protection challenge to the statutory regime that controls how parents who are U.S. citizens are able to pass citizenship to their children. To over-simplify, the statutes impose some limits on fathers’ ability to pass citizenship to their children that don’t apply to mothers. The petitioner in this case is a citizen of the Dominican Republic who came to the U.S. as a teenager but now faces deportation. His father was a naturalized citizen who was unable (due to the workings of the statute) to pass his citizenship along to him, while his mother would have been able to were she still alive. So he challenged his removal by challenging the statutory regime on gender-discrimination grounds.

The Third Circuit ruled in the petitioner’s favor. It held that intermediate scrutiny applied, and that the gender classification here failed because the government failed to show that it served an important governmental interest today. It further rejected the government’s argument that it should leave any remedy to Congress, holding that the petitioner was entitled to the statutory benefit available to petitioners with similarly situated mothers.

Chief Judge Smith dissented in part, agreeing that intermediate scrutiny applied but arguing that the classification met it.

Joining Greenaway Jr. was Krause, with Smith dissenting in part. Arguing counsel were Nick Curcio of Michigan for the petitioner and Stefanie Hennes of the DOJ for the government.