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Hastings Law Journal

Authors

Linda Kelly

Abstract

In Republican Mothers, Bastards' Fathers and Good Victims: Discarding Citizens and Equal Protection Through the Failures of Legal Images, Professor Linda Kelly uncovers the influence of gender images in immigration law. While in many areas of law gender perceptions have been exposed, in immigration law legal images of gender remain unspoken and unchallenged. In the recent decision of Miller v. Albright, the Supreme Court declared that while a woman becomes a parent immediately upon the birth of her child, a man is not legally considered a parent until he assumes post-birth responsibility for his child. Miller challenged a provision of the United States Immigration and Nationality Act which denies U.S. citizenship to a child who was born abroad and out-of-wedlock to a citizen father unless paternity is legally established during a child's minority. By contrast, the statute does not require a mother to undertake any affirmative acts. The effect of the Supreme Court's decision was to openly justify a statute based upon implicit assumptions regarding the inherent nurturing ability of mothers and the wayward nature of fathers.

The effect of such gender images becomes even more disturbing upon realizing that not only aliens, but U.S. citizens, are affected by immigration law, often times at the most intimate level. As in Miller, U.S. citizens must rely upon immigration law to secure citizenship for family members. Immigration law also dictates which family members of U.S. citizens and residents will be accorded the privilege of lawful permanent residency in the United States. Likewise, immigration law controls which spouses, children, parents and siblings may be deported. By controlling the flow of aliens seeking refuge within our borders, the law governing asylum also directly impacts the U.S. citizenry. It is this daunting power immigration law wields over the passage of persons which makes uncovering its underlying gender biases so essential. Republican Mothers, Bastards' Fathers and Good Victims: Discarding Citizens and Equal Protection Through the Failures of Legal Images undertakes to initiate that discovery and reveal the widespread damages gender images can unleash.

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