Tuan Anh Nguyen v. INS

Brief Fact Summary.

When the Immigration and Naturalization Service (Plaintiff) sought to deport Tuan Anh Nguyen (Defendant) after his felony conviction, Defendant claimed that he was a U.S. citizen and that federal law regarding citizenship of children born out of wedlock outside of the United States and its territories to one U.S. citizen parent violated his equal protection rights when it provided different procedures depending on whether the citizen parent was the mother or the father.

Synopsis of Rule of Law.

8 U.S.C. § 1409(a) does not create a gender-based classification that violates the Fifth Amendment’s guarantee of equal protection under the law when it creates different procedures for determining the citizenship of children born out of wedlock and outside of the United States and its territories to one U.S. citizen parent based upon which parent is the U.S. citizen.

Facts.

8 U.S.C. § 1409(a) automatically grants U.S. citizenship at birth to a child born out of wedlock outside of the United States or its territories so long as the mother is a U.S. citizen. The same statute requires a paternity decree before the child turns 18 in order to grant citizenship when the child is born out of wedlock outside of the United States or its territories and the U.S. citizen is the father. Defendant was born in Vietnam to a Vietnamese mother and American father. He came to the United States when he was six. At 22, Defendant pled guilty to sexually assaulting a minor and the Immigration and Naturalization Service (INS) later initiated deportation proceedings against him. Defendant argued that his father had established paternity when he was 28, that he was a U.S. citizen, and that § 1409(a) was unconstitutional because it violated equal protection by creating different rules depending on whether the U.S. citizen parent was the mother or the father. The U.S. Supreme Court granted certiorari. [The remainder of the procedural posture is not included in the casebook excerpt.]

Issue.

Does 8 U.S.C. § 1409(a) create a gender-based classification that is in violation of the equal protection right of the Fifth Amendment when it creates different rules for determining the citizenship of children born out of wedlock and outside of the United States and its territories to one U.S. citizen parent based upon which parent is the U.S. citizen?

Held.

(Kennedy, J.) No. 8 U.S.C. § 1409(a) does not create a gender-based classification that violates the Fifth Amendment’s guarantee of equal protection under the law when it creates different procedures for determining the citizenship of children born out of wedlock and outside of the United States and its territories to one U.S. citizen parent based upon which parent is the U.S. citizen. This statute places requirements on the children of citizen fathers that the children of citizen mothers do not face. A gender-based classification will survive equal protection analysis if the challenged classification serves an important government objective and is substantially related to achieving that objective. Section 1409(a)(4) requires a child of a citizen father and noncitizen mother to get legitimization, a declaration of paternity under oath by the father, or a court order of paternity in order to be granted citizenship. This law serves two important governmental objectives—ensuring that a biological parent-child relationship exists, and ensuring that the child and citizen parent have an opportunity to develop a relationship that creates a connection between the child and citizen parent, and by extension, the United States. A mother’s biological connection to the child is easily verifiable by the birth itself and the birth certificate and hospital records that reflect it. A father, on the other hand, is not necessarily present at the birth and if he is, his presence does not prove fatherhood. Defendant argues that    § 1409(a)(1)’s requirement that a father provide clear and convincing evidence of paternity should be enough to establish paternity with the use of DNA evidence. However, the statute does not require DNA testing and Congress cannot be required to choose one particular means of establishing paternity over others. Even a facially neutral rule would require fathers to take steps that would not be required of mothers because mothers can rely on birth certificates and hospital records to establish her relationship to the child. An opportunity for a mother and child to form a meaningful connection comes at birth, but that opportunity is not always guaranteed for fathers of children born out of wedlock. Service members stationed overseas and other citizens traveling throughout the world may not know when a child is conceived. Equal protection principles do not require Congress to ignore this reality. This statute ensures that the same opportunity for a relationship that is inherent in a mother-child bond is available for citizen fathers before citizenship is granted to the child. Congress may refuse to require the country to grant citizenship upon the child until the opportunity for this relationship is proven. The statute is not based upon gender stereotypes. There is nothing irrational in acknowledging that at birth the mother’s knowledge of the child and her parenthood is established in a way that is not guaranteed to an unwed father. Congress chose to serve these two government interests by means that substantially relate to those interests. Some act linking the child to the father must occur before the child is 18. Calling all acknowledgments of differences stereotypes serves only to obscure the misconceptions and biases that are real. The distinction between the genders is not based upon prejudice or disrespect, it acknowledges the very real difference between men and women in the birth process. Equal protection does not prohibit Congress from addressing an issue in a manner specific to each gender. Affirmed.

Dissent.

(O’Connor, J.) Even when a gender-based statute accurately reflects the difference between most men and women, it denies individuals opportunity. When a comparable or better gender-neutral alternative exists, the gender-based classification should be rejected. The idea that a mother’s presence at the birth of her child provides assurance that she will have an opportunity to develop a relationship with the child but a father’s presence at that same birth does not rests on an overbroad generalization about the genders. Mothers and children may be separated and not have that opportunity. There is no reason, other than a stereotype, to determine that fathers present at the birth of their child will not have the same opportunity for a relationship with the child as the mother. If Congress’s goal is to promote such opportunities, it can use gender-neutral rules such as requiring a certain amount of regular contact between the child and the citizen parent over a period of time. The argument that this statute substantially relates to this goal of meaningful relationships rests on stereotypes, not biological differences. In this case, Defendant was raised by his father and did not have a relationship with his mother. The defining characteristic of a gender-based classification that relies on impermissible stereotypes is that it relies upon the “simplistic, outdated assumption that gender could be used as a ‘proxy for other, more germane bases of classification.’” Section 1409(a) is a reflection of a history that left women with responsibility for nonmarital children while freeing men from any.

Concurrence.

(Scalia, J.) This Court does not have the authority to confer citizenship on any person on a basis other than that laid out by Congress.

Discussion.

Section 1409 also imposes a financial obligation for men seeking to obtain citizenship for their children born out of wedlock outside of the United States. This benefit works to a father’s benefit, allowing them to avoid the obligation by distancing themselves from their children born out of wedlock. The obligation is left then to the mother, who must bear the burden of raising the child. Historically, such a scheme developed in order to protect fathers from claims for property or support by children born out of wedlock.