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?
In 1997, Petitioner Ruben Flores-Villar was convicted under 21 U.S.C. §§ 952 and 960 for importation of marijuana, and was subsequently deported to Mexico. . On February 24, 2006, Flores-Villar was arrested and charged with violating 8 U.S.C. § 1326 by being a deported alien found in the United States after deportation. In his defense, Flores-Villar claimed that he was actually a United States citizen through his father, and filed for a certificate of citizenship with the Department of Homeland Security.
In 1974, when Flores-Villar was born, 8 U.S.C. §§ 1401(a)(7) and 1409 provided that if a U.S. citizen father and non-U.S. citizen mother produced a child out of wedlock abroad, the U.S. citizen father could only transmit citizenship if he had continuously resided in the United States for at least five years after the age of fourteen. . Conversely, if a U.S. citizen mother and non-U.S. citizen father produced a child out of wedlock, born abroad, the U.S. citizen mother could transmit U.S. citizenship if she had continuously resided in the United States for only one year prior to the child’s birth. The text of Section 1401 has since been amended to remove some of these differentiations, but the 1974 law applies to Flores-Villar.
Flores-Villar was born in Tijuana, Mexico in 1974 to Ruben Floresvillar-Sandez, a U.S. citizen who was sixteen at the time of Flores-Villar's birth, and Maria Negrete, a non-U.S. citizen. Floresvillar-Sandez’s mother was a U.S. citizen, and in 1999 Floresvillar-Sandez was issued Certificate of United States Citizenship. In 1976, Flores-Villar moved to the United States with his father and remained there until his arrest in 1997.
Prior to trial in the present case, the Department of Homeland Security denied Flores-Villar’s citizenship application because Flores-Villar's father did not satisfy the requirements of Section 1401(a)(7). Specifically, Flores-Villar’s citizenship application was denied because his father was sixteen at his birth, and unable to have resided continuously in the United States for five years after age fourteen, thus foreclosing his ability to transmit citizenship. Based on the denial of Flores-Villar's citizenship application and the exclusion of any extrinsic evidence of transmission of citizenship, the district court found Flores-Villar guilty.
Flores-Villar’s appeal to the United States Court of Appeals for the Ninth Circuit claimed that the prior versions of Sections 1401(a)(7) and 1409 make an impermissible classification based on age and gender, thereby violating the Equal Protection Clause of the Fourteenth Amendment. Flores-Villar argued that Sections 1401 and 1409 violated the due process rights of his father, and formed the basis for his Section 1326 conviction Lastly, Flores-Villar argued that Sections 1401 and 1409 perpetuated the stereotype that mothers have the exclusive responsibility for children born out of wedlock, and the differential residency requirements reflected this notion alone.
The Ninth Circuit evaluated Flores-Villar’s Equal Protection arguments, noting that Flores-Villar did not have standing to assert the rights of his father. Drawing on the rationale of Nguyen v. INS, the court held that Sections 1401 and 1409 were constitutionally permissible because the statutes further two substantial government interests: avoiding statelessness in children and assuring a link between an unwed citizen father and his child with each other and the United States.
On March 22, 2010, the Supreme Court granted certiorari to address the whether the Court’s decision in Nguyen permits differential statutory treatment of unwed mothers and fathers for transmitting citizenship.
This case turns on the constitutional permissibility of the now superseded statutory scheme of 8 U.S.C. §§ 1401 and 1409, which provide different residency requirements for unwed fathers and unwed mothers. The arguments in this case revolve around the legitimacy of the government’s interests in Sections 1401 and 1409, and whether those statutes violate the Equal Protection Clause by imposing a higher burden on unwed fathers without biological basis for the differing treatment.
Ruben Flores-Villar argues that he has standing to challenge the constitutionality of Sections 1401 and 1409, despite the fact that he is asserting the statutes discriminated based on gender against a third-party—his father—and not directly against himself. Standing is a threshold requirement for making any legal claim, and generally requires that the person making the claim has already or will directly suffer some specific harm. Flores-Villar contends that the Court has permitted third-party standing to proceed when the party asserting third-party standing has a “close relationship” with the other party, and when there is some “hindrance” to the third-party's ability to assert that right. Flores-Villar argues that the father-son relationship is a “close relationship,” and the district court's decision to bar his father from testifying at trial led to a direct injury to Flores-Villar: deportation and incarceration. Moreover, the “hindrance” to asserting Flores-Villar's father's rights was not the result of failure to pursue his rights because Flores-Villar’s father is not subject to prosecution and it is Flores-Villar’s freedom and citizenship that is at stake.
While acknowledging that Flores-Villar's father may not assert his rights in Flores-Villar's criminal prosecution, the United States contends that third-party standing must be evaluated in terms of whether Flores-Villar's father may effectively assert his rights in general. Even assuming Flores-Villar and his father have a “close relationship,” the United States claims that no actual “hindrance” or barrier prevented Flores-Villar's father from making an Equal Protection claim because Flores-Villar had ample opportunity to apply for a certificate of citizenship while he was a minor. Also, the United States argues that Flores-Villar's father could have joined his son’s suit after the latter’s application for a certificate of citizenship was denied.
Plenary Power Doctrine
Plenary power, typically associated with the Commerce Clause of the Constitution, is the limitless authority vested in Congress over a particular area of the law. The Plenary Power Doctrine originated in the Chinese Exclusion Case of 1889 as a judicial concept ascribing limitless authority to Congress to promulgate immigration policies. The Plenary Power Doctrine is rooted in the idea that Congress’s policy choices on immigration are fundamentally decisions about national sovereignty, and therefore exempt from substantive judicial and constitutional oversight.
The United States argues that Article I of the Constitution vests Congress with the plenary power to establish rules of naturalization, and that the Plenary Power Doctrine encompasses the power to confer citizenship to foreign-born children with United States citizen parentage. The United States contends that Section 1401 is directed at naturalization and not merely citizenship, because citizenship is automatically conferred only upon birth inside the United States, while birth abroad to United States citizen parents requires the naturalization of the foreign-born child to gain citizenship. In addition, the United States argues that the judiciary is ill-suited to review any naturalization laws because those laws represent the exercise of Congress's sovereign power to determine who may become a United States citizen and what is required for gaining citizenship. Lastly, because naturalization concerns the admission of aliens, the United States notes that naturalization laws are intertwined with foreign policy decisions and thus merit extreme deference lest the judiciary infringe upon Congress's purview over foreign affairs.
Flores-Villar argues that the plenary power does not apply to his case because it concerns citizenship, which is fundamentally different from alien immigration and naturalization. Flores-Villar notes that prior cases and Section 1409 itself recognize that acquisition of citizenship does not involve the transfer of loyalties underlying naturalization of aliens, and that citizenship by birth is conferred as of the date of birth. Even accepting that Congress has plenary power over transmission of citizenship, Flores-Villar argues that plenary power does not exempt the statute from judicial review. Flores-Villar posits that the Court has a duty to declare what laws are supreme, and that any law made pursuant to the constitution may be held void if the law violates any well-establish constitutional restrictions. Lastly, Flores-Villar states that because the Constitution does not tolerate gender discrimination, the Court has the duty to review and hold void Section 1401.
Equal Protection Analysis
In assessing the constitutionality of laws that involve a suspect classification—like race, national origin or religion—courts apply varying levels of scrutiny and different tests based on the suspiciousness of the classification. To evaluate the Flores-Villar’s gender discrimination claim under the Equal Protection Clause, the Court will apply intermediate scrutiny analysis by assessing whether a statute’s utilization of a gender-based classification is substantially related to furthering an important government interest.
Flores-Villar argues that because his case concerns gender-based discrimination in violation of the Equal Protection Clause, intermediate scrutiny applies and, in addition, there is a correlated strong presumption against the constitutionality of any statute making a gender classification. Flores-Villar draws support for this proposition from Nguyen v. INS, which recognized that there is a long history of sex discrimination in laws governing the transmission of citizenship. In turn, Flores-Villar points out the premise underlying the differential treatment of men and women in the transmission of citizenship is the stereotypical belief that a mother is "bound" as the natural guardian of her children, while an unwed father may choose to participate as a parent but is not "bound" to act as one. Thus, Flores-Villar contends that Sections 1401 and 1409 are truly premised on a stereotype which does not further the government’s purported interest in preventing stateless children.
The United States counters this argument by focusing on the validity of the gender classification as it relates to the substantial government interest in reducing the risk of statelessness—the primary interest Congress sought to advance through the differential statutory scheme. The United States adds that both parties agree that statelessness is an abhorrent condition that renders individuals vulnerable and without legal rights. The United States notes that traditionally, the United States applies a jus soli standard of citizenship, while many foreign countries apply a jus sanguinis standard. According to the United States, the issue of statelessness arises when a person is born in a jus sanguinis country, yet is unable to obtain citizenship because most jus sanguinis countries will ignore maternal transmission of citizenship if the father legitimates his parental relationship to the child. In addition, the United States contends that the legislative history of Sections 1401 and 1409 demonstrates that Congress was primarily motivated by statelessness concerns in creating differential residency requirements for men and women.
Flores-Villar argues that statelessness is a legitimate government interest, but the statutory scheme enacted by Congress fails to serve that interest. In particular, Flores-Villar contends that risk of statelessness was incongruously addressed through the gender-based residency requirements and actually increased the risk of statelessness for non-marital, legitimated children with U.S. citizen fathers. Thus, Flores-Villar argues that legitimation by the father in a jus sanguinis foreign country would preempt conferring the mother's citizenship, but then Sections1401 and 1409 would prevent transmission of citizenship through the father unless the burdensome residency requirements of Sections 1401 and 1409 are met. Moreover, Flores-Villar claims that because the discriminatory residence requirements actually increase the risk of statelessness, the statutory scheme is necessarily irrational and cannot survive intermediate scrutiny analysis.
The United States claims that Congress could have eliminated the possibility of statelessness by enacting a jus sanguinis law to supplement the Fourteenth Amendment’s jus soli rule, but specifically chose not to do so. The United States notes that Congress, in formulating the residency requirement, was reconciling competing interests of preventing statelessness and ensuring that foreign-born children with parents of differing citizenships have sufficient ties to the United States to merit citizenship. Thus, the United States contends that Congress balanced these interests while recognizing that children of unwed mothers were more susceptible to statelessness than all other citizen parents. Moreover, the United States posits that unwed mothers and unwed fathers are not similarly situated because the mother is the only parent able to transmit citizenship upon birth in jus sanguinis countries, and is thereby subject to greater risk of statelessness if non-citizen father legitimates his relationship to the child In addition, the United States contends that the balance Congress struck is rationally related to the unique statelessness risk faced by unwed mothers, and this legal reality demonstrates that unwed mothers and unwed fathers are not similarly situated.
This case will allow the Supreme Court to address the Equal Protection implications of a statutory scheme that differentiates between men and women. The Court’s ruling will directly impact non-marital, foreign-born people with unwed U.S. citizen fathers, for whom the now superseded Sections 1401 and 1409 forecloses the paternal transmission of citizenship. Ruben Flores-Villar argues that the statutory scheme of Sections 1401 and 1409 violates the Equal Protection Clause of the Constitution by discriminating based on gender stereotypes. In contrast, the United States contends that the differential residency requirements for transmission of citizenship are constitutionally permissible because they serve to promote a substantial government interest in preventing statelessness in children.
Flores-Villar contends that Sections 1401 and 1409, as written at the time of his birth, reflect a stereotypical, discriminatory view of parental obligations for men and women, and thereby impermissibly differentiating based on gender. Equality Now and other human rights organizations argue that all sex-based citizenship laws are inherently irrational and U.S. and international jurisprudence has recognized the presumptive importance of gender equality in citizenship laws. In addition, certain professors of history, political science, and law (“Professors”) argue that Congress’s regulation of transmission of citizenship in Sections 1401 and 1409 reinforces the gender-norm that fathers bear little or no responsibility for their non-marital offspring, leaving mothers with primary responsibility and high social stigma. According to the Professors, if the differential residency requirements are upheld, then the Court will effectively approve of a statutory framework that constrains the choice of parental roles by individual mothers and fathers. The American Civil Liberties Union (“ACLU”) argues that gender bears no relationship to an individual’s ability to be a parent. Citing recent census findings, the ACLU further notes that fathers are the sole caregivers in a significant number of single-parent homes, and that percentage has steadily increased in size since 1995.
In response, the United States argues the unwed fathers and unwed mothers are differently situated, and Sections 1401 and 1409 impose permissible differential treatment of mothers and fathers to prevent the occurrence of stateless children. First, the United States contends that the residency requirements Congress promulgated were aimed at preventing citizenship from being transmitted through generations of United States citizens living abroad. The United States notes that many countries base transmission of citizenship by parental blood relation—a system known as jus sanguinis—while the United States bases citizenship on location of birth, or jus soli. Statelessness, the United States claims, arises when a child is born in a jus sanguinis country but is unable to acquire the citizenship of either of his parents. Moreover, the United States argues that Sections 1401 and 1409 are the permissible products of Congress’s balancing a policy of preventing statelessness with the interest of ensuring that citizenship is sufficiently connected to presence in the United States. Thus, the United States concludes that the differential residency requirements are not discriminatory but merely recognize the legal reality facing unwed United States citizen mothers giving birth abroad in jus sanguinis countries, and the biological reality that mothers and fathers are not similarly situated in the determination of transmission of citizenship.
The Court will determine the constitutionality of the differential residency requirements based on the gender of the each parent. Flores-Villar contends that differential residency requirements impermissibly discriminate against unwed fathers based on the stereotyped gender roles. The United States argues that differential residency requirements further a substantial government interest in preventing the birth of stateless children and falls within Congress’s plenary power under Article 1 of the Constitution. However this case is resolved, the court’s decision will significantly impact the citizenship status of non-martial, foreign-born children with a U.S. citizen father and a non-U.S. citizen mother; and will likely require the Court to address directly the Equal Protection implications of gender-based residency requirements.
· 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)