Congress enacted a statute, Title 8 U.S.C. §1409, that imposes different requirements for the child’s acquisition of citizenship depending on whether the citizen parent is the mother or the father. After his claim is dismissed, the petitioner, Tuan Ahn Nyugen, appealed to the Court of Appeals for the Fifth Circuit arguing that §1409 violates equal protection by providing different rules of attainment of citizenship by children born abroad depending upon the citizenship status of his parents.
For a gender-based classification to withstand equal protection scrutiny, the classification must serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives.
Title 8 U.S.C. §1409 governs the acquisition of U.S citizenship by persons born to one U.S citizen parent and one non-citizen parent when the parents are unmarried and the child is born outside the U.S territory. The statute imposes different requirements for the child’s acquisition of citizenship depending on whether the citizen parent is the mother or the father. The petitioner, Tuan Ahn Nyugen, was born in Vietnam to a U.S citizen father and Vietnamese citizen mother. The parents lived in Vietnam but they soon divorced and Nyugen came to the U.S and became a lawful permanent resident. Nyugen’s father obtained an order of parentage from a state court, but the Board dismissed his appeal, rejecting his claim to U.S citizenship for his failure to meet the requirements in §1409.
Is the statutory distinction consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment?
Yes, §1409 is consistent with the Equal Protection Clause of the Fifth Amendment because the challenged gender-based classification here serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives.
A party who seeks to defend a statute that classifies individuals on the basis of sex must show an exceedingly persuasive justification for the classification because sex-based statutes, even when accurately reflecting the way most men and women behave, deny individual liberties and may reinforce fixed notions concerning the roles and abilities of males and females. The fit between the means and ends of §1409 is far too attenuated for the statute to survive heightened scrutiny. The majority failed to elaborate on the importance of the alleged interests nor did it demonstrate that the stated interests are actual purposes of §1409.
Congress’ imposition of the requirement for a paternal relationship, but not a maternal one, is justified by two government objectives. First, the requirement assures that a biological father-child relationship exists. In case of the mother, the relation is verifiable from the birth itself and the mother’s status is documented by the birth certificate in most instances. Also, §1409 ensures that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. In case of a citizen mother and a child born abroad, the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth. As opposed to the petitioner’s argument, §1409 does not embody a gender-based stereotype. The recognition that at the moment of birth – a critical event in the whole 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 father is not a stereotype.