Tuan Anh Nguyen v. INS: Supreme Court Upholds Constitutionality of Citizenship Statute

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

TUAN ANH NGUYEN V. INS: SUPREME COURT UPHOLDS CONSTITUTIONALITY OF CITIZENSHIP STATUTE
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

By a narrow majority, the United States Supreme Court has upheld the constitutionality of section 309 of the Immigration and Nationality Act, which governs the acquisition of U.S. citizenship by persons born abroad to one U.S. citizen parent and one noncitizen parent when the parents are unmarried. The statute imposes different requirements for a child's acquisition of U.S. citizenship depending upon whether the citizen parent is the mother or the father. The Court concluded that this distinction does not violate the equal protection guarantee of the Due Process Clause of the Fifth Amendment. The 5-4 ruling upholds a prior ruling of the Fifth Circuit Court of Appeals and reverses rulings of the Second and Ninth Circuits (see "2d Circuit Strikes Down Citizenship Law on Equal Protection Grounds; Supreme Court Grants Cert in Contrary 5th Circuit Case," Immigrants' Rights Update , Oct. 19, 2000, p. 9).

Section 309 provides that a child born out of wedlock to a U.S. citizen mother and noncitizen father acquires U.S. citizenship at birth, provided that the mother previously resided in the U.S. for a period of one year. A child born out of wedlock to a U.S. citizen father and a noncitizen mother, in order to acquire U.S. citizenship, must meet some additional requirements. There must be clear and convincing evidence of a blood relationship between the child and the father. In addition, before the child reaches 18 years of age, one of the following events must take place: (1) the child must have been legitimated under the law of his or her residence or domicile; (2) the father must acknowledge paternity of the child in writing under oath; or (3) the paternity of the child must be established by adjudication in a competent court. (The statute contains an additional requirement that the father, unless deceased, have agreed in writing to provide financial support for the child until he or she reaches 18 years of age; however, this requirement did not apply in this particular case and was not addressed by the Court.)

The petitioner in this case, a Mr. Nguyen, was born to unmarried parents in Vietnam in 1969. His father was a U.S. citizen employed by a corporation, and his mother was a Vietnamese citizen. Nguyen came to the U.S. at the age of six, became a lawful permanent resident, and was raised by his U.S. citizen father. In 1992, at the age of 22, Nguyen pled guilty to two counts of sexual assault on a child. The Immigration and Naturalization Service subsequently initiated deportation proceedings against him based on those convictions. At his deportation hearing, Nguyen testified that he was a citizen of Vietnam, and he was found deportable.

While Nguyen's case was on appeal to the Board of Immigration Appeals, his father obtained an order of parentage from a state court based on DNA testing. By that time Nguyen was 28 years old. He asserted U.S. citizenship based on his parentage in his appeal to the BIA. The BIA rejected this claim, finding that Nguyen had failed to meet the requirements of section 309. Nguyen then sought review of the BIA's decision in the Fifth Circuit Court of Appeals, claiming that section 309 violates the doctrine of equal protection under the laws. The court upheld the constitutionality of the statute, and this appeal to the Supreme Court followed.

Justice Kennedy, writing for the majority, concluded that the additional requirements imposed by the statute for children of U.S. citizen fathers are justified by two important governmental objectives. The first is the interest in assuring that a biological parent-child relationship exists. Stating that "[f]athers and mothers are not similarly situated with regard to the proof of biological parenthood," the majority found this a permissible basis for Congress to have imposed distinct requirements.

The second interest that the majority found to justify the statute is "to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop" a "real" rather than just a "formal" relationship. The Court found that for a mother such an opportunity "inheres in the very event of birth" but that for a father it does not. The majority was particularly concerned by statistics showing that, just in 1999, Americans made 59 million trips to other countries, often of short duration, creating a "realistic possibility" that some of them could father children without even knowing of the conception.

The majority also found that the statute is substantially related to the achievement of these important government interests. The Court found that the statute's additional requirements for fathers to pass on their citizenship are not burdensome, as they can be met simply by making a written acknowledgement of paternity under oath, or by legitimating the child, or by obtaining a court order of paternity. While the majority found it "unfortunate" and "even tragic" that the citizen father in this case who raised the child "did not pursue, or perhaps did not know of, these simple steps and alternatives," that omission does not invalidate the statute.

Justice O'Connor wrote a strong dissent that was joined by Justices Souter, Ginsburg, and Breyer. She contended that the majority, although it acknowledged that classifications based on sex must be examined with heightened scrutiny, failed to apply that principle in this case. She concluded that the majority's decision "represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny to such classifications to determine whether a constitutional violation has occurred. I trust that the depth and vitality of these precedents will ensure that today's error remains an aberration."

Tuan Anh Nguyen v. INS, __ U.S. __, No. 99-2071 (June 11, 2001).