August 6, 2008

U.S. v. Flores-Villar, No. 07-50445(9th Cir.)(August 6, 2008)

RYMER, Hall, Kleinfeld

The Ninth Circuit affirmed the district court’s ruling that former INA §§ 1401(a)(7) and 1409, requiring five years residence after the age of fourteen on U.S. citizen fathers – but not on mothers – before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen, did not violate the Equal Protection provisions of the Fifth Amendment. Petitioner had a substantial criminal history and six previous removal orders. In 2006 he was arrested again and charged with being a deported alien found in the U.S. after deportation in violation of INA §§ 276(a) and (b).

Petitioner attempted to defend on the ground that he obtained U.S. citizenship through his father. On cross motions in limine the district court ruled that Petitioner would not be allowed to present evidence that he believed he was a U.S. citizen. A contemporaneous N-600 application seeking a Certificate of Citizenship was denied since it would have been impossible for Petitioner’s U.S. citizen father to have been present in the U.S. for five years after his fourteenth birthday as required by § 1401(a)(7) since the father was 16 when petitioner was born.

The Ninth Circuit stated that the answer to the constitutionality of this former section of the INA “follows from the Supreme Court’s opinion in Nguyen v. INS, 533 U.S. 53 (2001).” In Nguyen the Supreme Court held that 1409’s legitimation requirements for citizen fathers, but not for citizen mothers, did not offend equal protection principles. The Ninth Circuit assumed, as did the Nguyen court, that the intermediate level of scrutiny applied to this case although they also stated that it would not matter if the law was “analyzed under intermediate scrutiny, a rational basis standard, or some other level of review in between.”

In finding that the former statutory provisions were constitutional the 9th Circuit stated: “(a)voiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests. The means chosen substantially further the objectives. Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”

The court’s reference to statelessness follows from the idea that relaxing the residence requirement for women makes sense “because many countries confer citizenship based on bloodline (jus sanguinis) rather than, as the United States does, on place of birth (jus soli).” If a U.S. citizen mother is not a dual national, and the illegitimate child is born in a country that does not recognize citizenship by jus soli alone, the child can acquire no citizenship other than his mother’s at birth. Although there are countries where the jus sanguinis doctrine runs through the mother and not the father, this was considered the minority view by the court here. Thus the distinction here by the former provisions of the INA had some basis for preventing statelessness.

Read opinion here

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