Latest sex classifications decision, Nguyen v. INS

[Volokh, Eugene]

> -----Original Message-----
> From: Thomas R. Bruce [SMTP:tom at barratry.law.cornell.edu]
> Sent: Monday, June 11, 2001 8:54 AM
> To:   liibulletin at www3.law.cornell.edu
> Subject:      LIIBULLETIN, Monday June 11  (6 cases)
>
. . .

> ===============================================================
> TUAN ANH NGUYEN v. INS (99-2071)
> Web-accessible at:
>     http://supct.law.cornell.edu/supct/html/99-2071.ZS.html
>
> Argued January 9, 2001  -- Decided June 11, 2001
> Opinion author: Kennedy
>
> ===============================================================
>
> Petitioner Tuan Anh Nguyen was born out of wedlock in Vietnam
> to a Vietnamese citizen and copetitioner Joseph Boulais, a
> United States citizen.        Nguyen became a lawful permanent United
> States resident at age six and was raised by Boulais.  At age
> 22, Nguyen pleaded guilty in a Texas state court to two counts
> of sexual assault on a child.  Subsequently, respondent
> Immigration and Naturalization Service initiated deportation
> proceedings against him based on his serious criminal offenses.
> The Immigration Judge ordered him deportable. Boulais
> obtained an order of parentage from a state court while
> Nguyen's appeal was pending before the Board of Immigration
> Appeals, but the Board dismissed the appeal, rejecting Nguyen's
> citizenship claim because he had not complied with 8 U.S.C.
> sect. 1409(a)'s requirements for one born out of wedlock and
> abroad to a citizen father and a noncitizen mother.  On appeal,
> the Fifth Circuit rejected petitioners' claim that sect.1409
> violates equal protection by providing different citizenship
> rules for children born abroad and out of wedlock depending on
> whether the citizen parent is the mother or the father.
>
> Held: Section 1409 is consistent with the equal protection
> guarantee embedded in the Fifth Amendment's Due Process Clause.
> Pp. 3-18.
>     (a) A child born abroad and out of wedlock acquires at
> birth the nationality status of a citizen mother who meets a
> specified residency requirement.  sect.1409(c).  However, when
> the father is the citizen parent, inter alia, one of three
> affirmative steps must be taken before the child turns 18:
> legitimization, a declaration of paternity under oath by the
> father, or a court order of paternity.        sect.1409(a)(4).  The
> failure to satisfy this section renders Nguyen ineligible for
> citizenship.  Pp. 3-5.
>     (b) A gender-based classification withstands equal
> protection scrutiny if it serves important governmental
> objectives and the discriminatory means employed are
> substantially related to the achievement of those objectives.
> United States v. Virginia, 518 U.S. 515, 533.  Congress'
> decision to impose different requirements on unmarried fathers
> and unmarried mothers is based on the significant difference
> between their respective relationships to the potential citizen
> at the time of birth and is justified by two important
> governmental interests.  Pp. 5-16.
> (1) The first such interest is the importance of
> assuring that a biological parent-child relationship exists.
> The mother's relation is verifiable from the birth itself and
> is documented by the birth certificate or hospital records and
> the witnesses to the birth.  However, a father need not be
> present at the birth, and his presence is not incontrovertible
> proof of fatherhood.  See Lehr v. Robertson, 463 U.S. 248, 260,
> n. 16.        Because fathers and mothers are not similarly situated
> with regard to proof of biological parenthood, the imposition
> of different rules for each is neither surprising nor
> troublesome from a constitutional perspective.        Section
> 1409(a)(4)'s provision of three options is designed to ensure
> acceptable documentation of paternity.        Petitioners argue that
> sect.1409(a)(1)'s requirement that a father provide clear and
> convincing evidence of parentage is sufficient to achieve the
> end of establishing paternity, given the sophistication of
> modern DNA tests.  However, that section does not mandate DNA
> testing.  Moreover, the Constitution does not require that
> Congress elect one particular mechanism from among many
> possible methods of establishing paternity, and sect.1409(a)(4)
> represents a reasonable legislative conclusion that the
> satisfaction of one of several alternatives will suffice to
> establish the father-child blood link required as a predicate
> to the child's acquisition of citizenship.  Finally, even a
> facially neutral rule would sometimes require fathers to take
> additional affirmative steps which would not be required of
> mothers, whose names will be on the birth certificate as a
> result of their presence at the birth, and who will have the
> benefit of witnesses to the birth to call upon.  Pp. 7-9.
> (2) The second governmental interest furthered by
> sect.1409(a)(4) is the determination to ensure that the child
> and citizen parent have some demonstrated opportunity to
> develop a relationship that consists of real, everyday ties
> providing a connection between child and citizen parent and, in
> turn, the United States.  Such an opportunity inheres in the
> event of birth in the case of a citizen mother and her child,
> but does not result as a matter of biological inevitability in
> the case of an unwed father.  He may not know that a child was
> conceived, and a mother may be unsure of the father's identity.
> One concern in this context has always been with young men on
> duty with the Armed Forces in foreign countries.  Today, the
> ease of travel and willingness of Americans to visit foreign
> countries have resulted in numbers of trips abroad that must be
> of real concern when contemplating the prospect of mandating,
> contrary to Congress' wishes, citizenship by male parentage
> subject to no condition other than the father's residence in
> this country.  Equal protection principles do not require
> Congress to ignore this reality.  Section 1409 takes the
> unremarkable step of ensuring that the opportunity inherent in
> the event of birth as to the mother-child relationship exists
> between father and child before citizenship is conferred upon
> the latter.  That interest's importance is too profound to be
> satisfied by a DNA test because scientific proof of biological
> paternity does not, by itself, ensure father-child contact
> during the child's minority.  Congress is well within its
> authority in refusing, absent proof of an opportunity for a
> relationship to develop, to commit this country to embracing a
> child as a citizen.  Contrary to petitioners' argument,
> sect.1409 does not embody a gender-based stereotype.  There is
> nothing irrational or improper in recognizing that at the
> moment of birth--a critical event in the statutory scheme and
> tradition of citizenship law--the mother's knowledge of the
> child and the fact of parenthood have been established in a way
> not guaranteed to the unwed father.  Pp. 9-13.
> (3) The means Congress chose substantially relate to
> its interest in facilitating a parent-child relationship.
> First, various statutory provisions, in addition to
> sect.1409(a), require that some act linking a child to the
> United States occur before the child turns 18.        Second,
> petitioners' argument that sect.1409(a)(4) reflects a
> stereotype that women are more likely than men to actually
> establish the required relationship misconceives both the
> governmental interest's nature and the equal protection
> inquiry.  As to the former, Congress could have chosen to
> advance the interest of ensuring a meaningful relationship in
> every case, but it enacted instead an easily administered
> scheme to promote the different but still substantial interest
> of ensuring an opportunity for that relationship to develop.
> Petitioners' argument confuses the equal protection inquiry's
> means and ends; sect.1409(a)(4) should not be invalidated
> because Congress elected to advance an interest that is less
> demanding to satisfy than some alternative.  Even if one
> conceives of Congress' real interest as the establishment of a
> meaningful relationship, it is almost axiomatic that a policy
> seeking to foster the opportunity for meaningful parent-child
> bonds to develop has a close and substantial bearing on the
> governmental interest in that bond's formation.  Here,
> Congress' means are in substantial furtherance of an important
> governmental objective, and the fit between the means and that
> end is exceedingly persuasive.        See Virginia, supra, at 533.
> Pp. 13-16.
>     (c) Section 1409(a)(4) imposes a minimal obligation.
> Only the least onerous of its three options must be satisfied;
> and it can be satisfied on the day of birth, or the next day,
> or for the next 18 years.  Section 1409(a), moreover, is not
> the sole means of attaining citizenship for the child, who can
> seek citizenship in his or her own right, rather than via
> reliance on parental ties.  P. 16.
>     (d) Because the statute satisfies the equal protection
> scrutiny applied to gender-based qualifications, this Court
> need not consider whether it can confer citizenship on terms
> other than those specified by Congress or assess the
> implications of statements in earlier cases regarding the wide
> deference afforded to Congress in exercising its immigration
> and naturalization power.  Pp. 17-18.
>
> 208 F.3d 528, affirmed.
>
> Kennedy, J., delivered the opinion of the Court, in which
> Rehnquist, C. J., and Stevens, Scalia, and Thomas, JJ., joined.
> Scalia, J., filed a concurring opinion, in which Thomas, J.,
> joined.  O'Connor, J., filed a dissenting opinion, in which
> Souter, Ginsburg, and Breyer, JJ., joined.
>
. . .


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