Joanna L. Grossman

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

By JOANNA L. GROSSMAN
Tuesday, November 9, 2010

In the first column in this series , I began to consider a case that is scheduled this week for oral argument in the U.S. Supreme Court: United States v. Flores-Villar. The case involves the constitutionality of a provision of the immigration and naturalization law. That provision requires fathers to be physically present in the United States for substantially longer than mothers must, in order to transmit citizenship to their children who are born outside of the United States.

In this particular case, the requirement at issue was that a citizen-father be physically present in the U.S. not only for ten years total, but for five years after reaching the age of fourteen. But the person raising the challenge, Ruben Flores-Villar, was born when his father was only sixteen--three years shy of the time required. In contrast, a mother would have only had to show one year of physical presence prior to an out-of-wedlock child's birth in order to transmit citizenship.

Thus, the case before the Supreme Court raises the following question: Can Flores-Villar -- who is now 36 years old -- be deported after a criminal conviction simply because his father, rather than his mother, was a citizen of the United States?

Nguyen v. INS : Does This Key Precedent Mandate a Loss for Flores-Villar?

In this previous column in this series, I began to discuss Nguyen v. INS. In that case, the Supreme Court upheld, against an equal protection challenge, a provision of current law that requires an unwed father to institute a legitimation proceeding before a child's eighteenth birthday in order to confer citizenship upon him -- while imposing no such requirement on unwed mothers. Somewhat surprisingly, the Court in Nguyen rejected the argument that this differentiation violated well-established principles of constitutional sex equality.

Since the 1970s, courts have applied heightened scrutiny to formal, sex-based classifications, a standard that has seemed to get even more exacting over time -- although it did not help Nguyen.

In a 1996 case, U.S. v. Virginia , the Supreme Court struck down a male-only admissions policy of the Virginia Military Institute, concluding that the state had failed to provide an "exceedingly persuasive justification" for excluding women. In Nguyen , the Court could arguably have applied a lower standard of review given Congress' plenary power over naturalization, but chose to apply the sex-discrimination standard it had applied in U.S. v. Virginia instead.

In Nguyen, the Supreme Court identified two purported interests motivating Congress to enact the statute at issue. First, there was Congress' interest in ensuring that children are only granted citizenship when they in fact have a citizen-parent -- a question of biology. Second, there was Congress' interest in ensuring that for citizenship to be granted to a child with a citizen-parent, the child and parent must have had "some demonstrated opportunity" to have a meaningful relationship, which could establish ties between the child and the United States.

The first interest the government asserted in Nguyen focused on weeding out fraudulent claims of fatherhood. (The statute makes no attempt to weed out false claims of motherhood, however.) But a separate provision imposed a higher standard of proof for paternity in this context, which, combined with the sophistication of modern genetic testing, should all but eliminate false claims of a biological tie.

Moreover, in Nguyen , there was no question that Boulais was Nguyen's biological father; the only problem was that this fact was not legally adjudicated before Nguyen turned eighteen, as was required by the statute. It is hard to see why fatherhood could not be scientifically-proven at any time, if the real concern was about false claims.

The Court was not persuaded by these arguments, however. It opted to give Congress the deference to choose the mechanism to serve its stated interests, even though modern equal- protection cases support a much more stringent standard when it comes to the closeness of the fit between legislative means and ends.

The second interest the government asserted in Nguyen focused on ensuring that citizenship was transmitted only when meaningful ties had been established between an unwed father and his child. This interest makes sense, but the statute seems ill-designed to serve it.

The Court held that for mothers, Congress could simply presume the opportunity for a meaningful relationship with the child, based solely on the "biological inevitability" that the mother must be present at birth. But for fathers -- who might be men in the armed services sowing their wild oats while on furlough, and who might not even attend the birth -- the Court concluded, the same presumption could not be made.

One problem with this presumption is the sexist stereotypes it entails. It ignores the mothers who, like Nguyen's own mother, abandon their children at an early age. It also ignores the fathers who, like Nguyen's father, establish strong ties with their sons. The equal protection clause is not supposed to rely on such stereotypes, nor ought it unfairly benefit or burden those who defy them. But, again, the Court opted for a lenient review of the fit between Congress' means and ends.

Nguyen 's Effect on Flores-Villar -- and the Arguable Difference Between the Two Provisions at Issue

One aspect of Nguyen that might help Ruben Flores-Villar -- the individual whose fate is at issue in the case the Court will soon consider -- is that, in Nguyen , the Court did at least purport to apply the heightened scrutiny appropriate for sex-based classifications, rather than a special, weaker standard potentially justified by the naturalization context. (Flores-Villar also makes an age-discrimination claim, but that claim is entitled only to a lower form of review.)

Will the provision that made Ruben Flores-Villar ineligible for U.S. citizenship nonetheless be upheld? The U.S. Court of Appeals for the Ninth Circuit ruled that Nguyen clearly forecloses Flores-Villar's equal-protection challenge. It concluded: "Although the means at issue are different in this case -- an additional residence requirement for the unwed citizen father -- the government's interests are no less important, and the particular means no less substantially related to those objectives, than in Nguyen." The Ninth Circuit may be right, although one response is that, in Nguyen , the Supreme Court simply failed to do its job of policing the means-ends fit in a case involving blatant sex discrimination.

But even if the Supreme Court decides not to revisit its holding in Nguyen, it could still strike down this particular provision. There is a real argument here that the means and ends are even less closely related in Flores-Villar than they were in Nguyen. Under the provision at issue in Flores-Villar, a man who is under age nineteen, as Ruben's father was, can never confer citizenship on a child born outside the United States -- regardless of what efforts were made to establish paternity or maintain the ties between country, father, and child that Congress claims are so important.

This provision, then, is quite different than the provision upheld in Nguyen -- which imposed procedural, but not substantive obstacles to the recognition of a parent-child relationship for citizenship purposes. And the differentiation has nothing to do with establishing a biological tie between parent and child -- that is addressed by a separate provision requiring the establishment of paternity. Without a biological difference at stake, there is even less justification for differential treatment of fathers and mothers.

Other Precedents Regarding Unwed Fathers May Prove of Assistance to Flores-Villar

The substantive bar at issue in Flores-Villar is also inconsistent with other rulings about the constitutionality of laws differentiating between unwed mothers and fathers. In a series of cases in the 1970s and 1980s, the Supreme Court struck down a wide range of state laws that categorically refused to recognize a parent-child relationship between an unwed father and his offspring for purposes of inheritance, custody, vetoing proposed adoptions, and so on. These rulings did not mean that states could no longer differentiate between unwed mothers and fathers, but they did mean that the state had to do so in a way that was closely related to its desired (and important) ends.

States are entitled to impose procedural requirements designed to ensure paternity as a precondition to rights, and to limit the rights of those unwed fathers who have failed to take advantage of the opportunity to develop a meaningful parent-child relationship. But, after these cases, states could no longer simply pretend that unwed fathers did not exist. Today, it is very common for states to require unwed fathers to jump through hoops to establish a parent-child relationship, but the hoops are procedural and can be met by any biological father who makes the effort. And, in some states, there is no differentiation at all.

Thus, the provision at issue in Flores-Villar, enacted in 1952, is perhaps a creature of its time -- a time when unwed fathers were at best only loosely tied to their children by law. But, the provision that deprives Flores-Villar of citizenship would apply even if his mother and father had been married. Only an unwed mother could transmit citizenship based solely on a one-year period of physical presence in the United States. Married mothers and father, and unwed fathers, were all subject to the ten-year-presence requirement.

The government's justification for the dramatic difference in the treatment of married citizen-parents and unwed citizen-fathers, on one hand, and unwed citizen-mothers, on the other hand, relates to purported concerns about "stateless" children. According to the brief the United States filed with the Supreme Court, many countries grant citizenship to children based only on their parent's nationality, rather than on the children's place of birth. And for out-of-wedlock children, only the blood tie with the mother might be recognized. Thus, the argument goes, a child born out of wedlock and outside the United States to a U.S.-citizen-mother might have no nationality at all, unless the U.S. allows the transmission of citizenship through the unwed mother.

Statelessness seems like a valid concern but, again, Congress has used a very blunt instrument here to avoid it. Because of the one-year-presence requirement for U.S.-citizen mothers, there may still be substantial numbers of children born stateless. And because not all countries base citizenship on blood lines, there may be substantial numbers of children who qualify for citizenship despite having no risk of statelessness. This is the kind of over- and under-inclusiveness that is usually fatal to a sex-based classification.

Moreover, the necessity for the law's harsh past requirements is called into question by subsequent amendments. Under current law, the physical-presence requirement has been reduced to a total of five years, only two of which must occur after the citizen-father turns fourteen. This amendment applies only to children born after November 14, 1986, and thus does not help Flores-Villar directly, but it does suggest that the previous law was unnecessarily onerous.

Flores-Villar Has At Least a Reasonable Chance of Prevailing

It is always risky business to make predictions about Supreme Court cases prior to oral argument, when at least some of the Justices tend to reveal their hands. But given the drastic differentiation between unwed mothers and unwed fathers, and the devastating consequences for some children of that differentiation, Flores-Villar has at least a reasonable hope of prevailing here.

Granted, Flores-Villar himself is not a terribly sympathetic character -- he has multiple criminal convictions, and was found to have made multiple illegal entries to the U.S. following his deportation. But the facts regarding one particular person should not sway the Court in reviewing the constitutionality of a provision of our naturalization laws that could potentially be applied to many. Citizenship is not something to be taken lightly, and citizenship rules should not be driven by happenstance as to the particular party before the Court.


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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