The Golden Door

In law school, I remember reading Nguyen v. INS (U.S. 2001).  This was an immigration case in which a young man, born out of wedlock in Vietnam to a U.S. citizen father and a Vietnamese mother and who had lived in the United States since he was six, was ordered deported after being convicted of sexual assault of a child.  As an immigration lawyer, the case stayed with me because the petitioner was Vietnamese, like me, and the gender discrimination issue was a thorny one to grapple with.

The young man at the heart of Nguyen v. INS, Tuan Anh Nguyen, had uncontested legal permanent resident status, but only citizenship status would save him from deportation.  The law at the time of Nguyen’s birth imposed different requirements for unwed U.S. citizen fathers to transmit citizenship to their children than for unwed U.S. citizen mothers.  For the record, the requirements for unwed fathers and unwed mothers are still different under current law, but to a lesser degree.  In Nguyen’s case, for an unwed father to transmit citizenship to his child, the father must have resided in the United States for a total period of at least five years at the time of the child’s birth, with at least two of those years being after the father turned 16.  In addition, the father had to meet a number of other conditions, one of which was to establish the paternity of the child before that child turned 18.  It was this particular requirement that prevented Nguyen from establishing his U.S. citizenship through parentage, as Nguyen’s father did not take this step until after Nguyen turned 18.  Had Nguyen’s mother been the U.S. citizen, rather than his father, she would only have needed to have resided in the United States for 12 continuous months at the time of his birth to transmit citizenship to him.  Nguyen challenged the higher standard for unwed fathers to transmit citizenship as violating Equal Protection.

The Supreme Court, in a 5-4 decision, held that, pursuant to an intermediate scrutiny standard, the different treatment of unwed mothers and fathers did not violate Equal Protection.  The majority, in a less-than-convincing opinion, justified the different treatment of unwed mothers and fathers based on (1) the fact that women give birth makes it reasonable to require that fathers provide some additional proof to establish paternity; and (2) the fact that women give birth gives mothers a greater opportunity to develop a meaningful parent-child relationship with their children than fathers with their children.

The end result was that Nguyen is not a U.S. citizen and presumably was deported to Vietnam, even though he had not lived there since he was six years old.

This term, the Supreme Court will be deciding another immigration gender discrimination case in which the ability of unwed U.S. fathers to transmit citizenship to their children is again held to a higher standard than for unwed U.S. mothers.  In Flores-Villar v. United States, another young man faces deportation even though his father is a U.S. citizen.  Ruben Flores-Villar came to the United States at two months of age and has lived here ever since.  He was first ordered deported for an importation of marijuana conviction.  He kept coming back home, however (imagine that!), and kept being re-deported.  Finally, during the seventh deportation proceeding, Flores-Villar raised the defense that he is a citizen because the different rules for transmission of citizenship for unwed mothers and unwed fathers violates Equal Protection.

In Flores-Villar’s case, the applicable statutory provision that prevents him from being a U.S. citizen by parentage is the requirement, for unwed U.S. citizen fathers, that the father have resided in the United States for at least five years after the age of 14.  This effectively means that men could not transmit citizenship to any children they had before the age of 19, as it would be chronologically impossible to accumulate this five-year residency requirement before turning 19 years old.  Flores-Villar’s father was 16 when he was born.  Had Flores-Villar’s mother been the U.S. citizen, though, she would only have needed to have resided in the United States for a period of 12 continuous months to transmit citizenship.

The United States is arguing that the lowered standard for unwed mothers is aimed at preventing the creation of stateless children, that is, children who can claim no nationality and thus can claim no country’s protection.  This is based on the fact that in some countries a child born to an unwed mother is treated as having the nationality of the mother, rather than the nationality of the country of birth.  If the United States were to make it difficult for an unwed U.S. citizen mother to transmit citizenship to her child then there might be a lot of children out there who don’t have U.S. citizenship but also don’t have the citizenship of the country in which they were born.  One might then ask, why put up any roadblocks to this goal by mandating time-in-residency requirements for either unwed mothers or unwed fathers?  But another competing policy consideration from the government’s standpoint is to ensure that children who receive U.S. citizenship through a parent have some ties to the United States, and the solution to this concern appears to be the requirement that the parent has spent some time living here.  The question is, does the goal of reducing the potential for stateless children justify the different treatment of unwed fathers’ versus unwed mothers’ ability to transmit U.S. citizenship?

With Flores-Villar, I can at least see both sides of the legal arguments:  the Supreme Court is being asked to weigh the government’s purported interest in preventing the children of unwed mothers from being deemed stateless against the resulting discrimination against unwed fathers.  What I find particularly troubling is the result that no unwed father under the age of 19 can transmit U.S. citizenship, while unwed mothers of any age can.  This creates an unacceptable risk of creating stateless children of unwed U.S. fathers and this provision should be struck, if nothing else.  It should not be impossible for a U.S. citizen to transmit citizenship to his children based solely on his age at the time of the child’s birth.

In Nguyen, the Court’s reasoning that the biological fact of birth makes it easier to determine maternity than paternity and, further, makes unwed mothers more likely to form a stable, lasting relationship with their children than unwed fathers is outdated and sexist.  DNA testing and evolving parental roles make it ever less likely that men who want to help their children claim U.S. citizenship by parentage will not actually be the biological fathers of these children and not be integrally involved in their children’s lives.  In addition, the lower standard for unwed mothers allows women to have much less established relationships with their children and yet still be able to transmit U.S. citizenship.  This discrepancy allows the identified goal of ensuring that a child has sufficient ties to the United States to fall by the wayside when it is the mother transmitting citizenship.

But putting aside the legal arguments, what is at stake here is that individuals whose only known home country is the United States, and who have committed crimes but served their time, are being forced into exile, and even an immigration lawyer cannot help them in such a case.  Had their mothers been U.S. citizens instead of their fathers, they would not be subject to deportation.  It must seem bizarre to Nguyen and Flores-Villar and to everyone else in this situation that such a twist in some obscure immigration law can have such a profound effect on their lives.  It’s like being subject to double jeopardy, being punished for your crime and then deported, but only if your father were the U.S. citizen parent.  Having your mother be the U.S. citizen parent is like the get-out-of-jail-free card.

Deportation of foreign nationals who come here as adults and commit serious crimes is a necessary tool in policing our communities.  But the deportation of those who came here as young children and who have the strongest ties to communities here in the United States, while serving to get rid of people with unsavory criminal histories, also devastates the U.S. communities to which these individuals belong.  And keep in mind that the deportee will find himself or herself a stranger in a strange land, more than likely without the support of a caring community.  What kind of new life will the deportee build?  Is this really what we want to be doing?

Djung Tran, Esq.

Tran Law Associates