Joanna L. Grossman

In United States v. Flores-Villar, The Supreme Court Will Hear Argument on the Citizenship Rights of Non-Marital Children: Part One in a Two-Part Series

By JOANNA L. GROSSMAN
Monday, November 8, 2010

On November 10, the U.S. Supreme Court will hear oral argument in United States v. Flores-Villar, a case that considers the citizenship rights of children born to U.S.-citizen fathers and non-U.S.-citizen mothers.

The rights of children fitting this description have been considered by the high court in a number of previous cases, most notably in Nguyen v. INS in 2001. There, the Court upheld against an equal-protection challenge certain features of the immigration and naturalization rules that differentiate in terms of citizenship eligibility for children born outside of the United States to one citizen-parent and one non-citizen parent. In short, mothers can more easily transmit citizenship to their foreign-born offspring than can fathers.

In this two-part series of columns, I will consider the issue presented in Flores-Villar and the relevance of the high court's prior ruling in Nguyen.

Ruben Flores-Villar's Citizenship Predicament

Ruben Flores-Villar was born in Mexico in 1974. His mother was a Mexican citizen; his father was a U.S. citizen, who was 16 years old at the time of Ruben's birth. Two months after his birth, Ruben was brought to the United States by his father and maternal grandmother in order to obtain medical treatment.

Had Flores-Villar been born in the United States, rather than being brought here two months later, he would be entitled to so-called birthright citizenship, regardless of the citizenship status of either parent. But because he was born outside the United States, his eligibility for citizenship turns on whether he meets the legal criteria for transmission of citizenship from an unwed citizen-father.

Why does citizenship matter here? It can matter for lots of reasons, of course, but for Flores-Villar, it matters because he was convicted of a drug-related crime in 1997, and such a conviction renders a non-citizen (but not a citizen) deportable. After serving a 24-month sentence for importing marijuana, he was deported to Mexico. Then, he was removed from the United States multiple times afterwards for illegal entry. In 2003, he was convicted of two counts of illegal entry.

In 2006, Flores-Villar was arrested again, for being a deported alien found again in the United States. In the face of this change, his defense was that he believed he was a U.S. citizen because his father is. While the charge was pending, he filed a N-600 application seeking a Certificate of Citizenship, which was denied. The government succeeded in having evidence of his purported citizenship excluded at trial, and Flores-Villar was convicted on the illegal entry charge and sentenced to 42 months in prison. It is this conviction that he is now appealing.

Citizen-Mothers v. Citizen-Fathers

If Ruben's mother had been a U.S. citizen, she could have transmitted citizenship to him, as an out-of-wedlock child, as long as she was a citizen at the time of his birth and had been physically present in the U.S. for at least one year previously. Indeed, this happens to be the legal rule under which Ruben's own father gained U.S. citizenship. Like Ruben, Ruben's father was born outside the United States and out-of-wedlock, but his mother was a United States citizen by birth who had been physically present in the U.S. for at least one year prior to his birth, which meant he was entitled to citizenship. Ruben's father obtained a certificate verifying that citizenship in 1999.

But for Ruben, there was no automatic citizenship--indeed, there was no path to citizenship at all. Instead, he was in a position to obtain citizenship through his citizen-father only if certain criteria were met. Unfortunately for Ruben, however, it was physically impossible for one of the necessary elements to be established, as I will explain.

The law in effect when Ruben was born provided that citizenship is available to "a person born outside the geographic limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years."

Let's do the math: In order for Ruben to inherit citizenship from his father, his father would have to be physically present in the U.S. for a total of ten years, at least five of which had to be after reaching age fourteen. But Ruben was born when his father was only sixteen, three years shy of the minimum number of years of physical presence in the U.S. after age fourteen required by the statute. Thus, even though Ruben's father came to the U.S. as an infant, and remained there continuously until Ruben's birth -- accruing six more years of residency than the required total -- Ruben could not get citizenship through him. In effect, the only years that counted were the ones between Ruben's father's fourteenth birthday, and the day, when Ruben's father was sixteen, when Ruben was born.

The years-after-fourteen criterion was not the only criterion for transmission of citizenship through Ruben's father. As an out-of-wedlock child, Ruben would also have to establish, under a separate provision, that paternity was established before his twenty-first birthday. This, however, would likely not have been an issue since Ruben's father filed an acknowledgment of paternity with the Civil Registry in Mexico when Ruben was eleven.

Ruben challenged his conviction for illegal entry on equal-protection grounds. It is unconstitutional, he argues, for federal immigration law to apply different criteria for the transmission of citizenship through citizen-mothers, than through citizen-fathers. Despite this challenge, however, the U.S. Court of Appeals for the Ninth Circuit affirmed his conviction, concluding that the U.S. Supreme Court had already, in Nguyen v. INS, found this type of differentiation constitutional.

The Most Relevant Precedent: Nguyen v. I.N.S.

Thus, the question raised by Flores-Villar is this one: Can Congress impose different rules for citizenship based on whether the citizen-parent is the mother or the father without running afoul of equal-protection principles? (The Equal Protection Clause in the Fourteenth Amendment applies only to actions of the states, but its principles have been read into the Fifth Amendment's Due Process Clause, which applies to the federal government.) If so, is there any limit to the differentiations that can be made? These same questions were considered at least twice previously by the Supreme Court, in Miller v. Albright (1998) and Nguyen v. INS (2001).

In Nguyen, the Court considered the constitutionality of the provision imposing different requirements for mothers and fathers to transmit citizenship to out-of-wedlock children. Citizen-mothers who have lived for at least one continuous year in the United States automatically transmit citizenship to their foreign-born, out-of-wedlock children at birth, while citizen-fathers and their foreign-born, out-of-wedlock children must take affirmative steps to bring about the same result.

Specifically, the citizen-father must agree in writing to provide financial support until the child reaches the age of 18. And the foreign-born child must prove the existence of a blood relationship by clear and convincing evidence. The child must also obtain formal recognition of paternity before he or she turns 18 -- through a legitimation proceeding; a written, sworn acknowledgement of paternity from the father; or a court adjudication of paternity. Only then will the child be treated as if he or she had been a citizen since birth.

In the Nguyen case, Tuan Ahn Nguyen was convicted of two crimes of moral turpitude, and thus faced deportation to Vietnam because he was unable to prove his U.S. citizenship. He was born in Vietnam in 1969 to an American father, Joseph Boulais, and a Vietnamese mother. Boulais openly acknowledged paternity and supported and lived with his son, taking him back to the U.S. and raising him, with the help of a new wife, in Texas. Nguyen had no ties to Vietnam, and his mother most likely did not survive the war.

Boulais behaved in every way like a responsible, custodial parent. Biologically and practically, he is Nguyen's father. But for citizenship-purposes, none of this mattered. Because Boulais never fulfilled the statute's formal requirements of legitimation, he could not transmit citizenship to his son. And because the son's conviction occurred after his eighteenth birthday, it was then too late for Boulais to go back and do the paperwork. Despite being raised in the U.S. by a citizen-father, Nguyen was deemed a non-citizen. Had his mother's and father's roles been reversed, he would have been clearly a citizen and thus would not have been deportable, despite his criminal conviction.

On a challenge to the constitutionality of this provision of the immigration and naturalization law, the Supreme Court upheld it. The Court reviewed the statute with "intermediate scrutiny" -- the level of review required for enactments that draw sex-based classifications. And, after applying intermediate scrutiny, the Court found that Congress had chosen appropriate means to further an important governmental interest. Nguyen was not a citizen, the Court concluded, and he could thus be deported to Vietnam -- a country whose language he did not speak, and where he had no known family -- based on his criminal conviction.

In Part Two of this series, I will explain further the reasoning of Nguyen and discuss its relevance to the provision at issue in Flores-Villar. The U.S. Court of Appeals for the Ninth Circuit held, in Flores-Villar , that its hands were tied by the precedent set by Nguyen. But was that court right to reach that conclusion?


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), and the coauthor of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011). Her columns on family law, trusts and estates, and discrimination may be found in the archive of her columns on this site.

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