Do the gender-based differential residency requirements for transmission of citizenship in 8 U.S.C. §§ 1401 and 1409 violate the Equal Protection Clause of the Constitution?
After his conviction for importing marijuana in 1997, Ruben Flores-Villar was deported to Mexico. Flores-Villar subsequently reentered the United States on several occasions, leading to his conviction under 8 U.S.C. § 1325 for being a deported alien found in the United States. Flores-Villar was born in Mexico, out of wedlock, to a United States citizen father and foreign mother. Under 8 U.S.C. §§ 1401 and 1409, United States citizen fathers of non-marital children born abroad may only transmit United States citizenship if the father had resided in the United States continuously for at least five years after age fourteen. On the other hand, United States citizen mothers with foreign-born non-marital children are only required to have one year residence in the United States to transmit citizenship. Flores-Villar challenged his Section 1325 conviction on the grounds that the differential residency requirements of 1401 and 1409 make an impermissible classification based on gender that resulted in his alien status. The appeals court affirmed Flores-Villar's conviction and the Supreme Court granted certiorari to determine whether the gender-based differentiation in 8 U.S.C. §§ 1401 and 1409 is constitutionally permissible.
Questions as Framed for the Court by the Parties
Whether the court’s decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?
· Constitutional Law Prof Blog, Ruthann Robson: Gender, Equal Protection & Immigration: SCOTUS grants cert in Flores-Villar: Analysis (Mar. 22, 2010)
· New York Times, Adam Liptak: Justices to Weigh Law on Gaining Citizenship Via Parents (Mar. 22, 2010)