Nguyen, Tuan, et al. v. Immigration & Naturalization Service (06/11/2001)

By: Elodie Mailliet, Medill News Service

Questions presented

Whether a federal statute, 8 U.S.C 1409, violates the equal protection guarantee of the 5th Amendment by imposing different standards on citizen fathers than on citizen mothers for conferring citizenship on their foreign-born and out-of-wedlock children.

Brief

Tuan Ahn Nguyen was born in Saigon, Vietnam, in 1969.

His mother abandoned him at birth, leaving Joseph Boulais, a U.S. army Vietnam veteran, alone to take care of him.

In April 1975, Saigon fell to the North Vietnam communist forces. At the time, Boulais and his new wife, Mai -also from Vietnam- were out of the country on a business trip.

Nguyen, who had stayed in Saigon with Mais mother, fled the country on a U.S. refugee ship.

Nguyen entered the United States as a refugee. He was reunited with his family a few months later at the Eglin Air Force Base in Florida. He later became a lawful permanent resident.

Boulais, a mobile-home park owner, raised Nguyen in Houston, Texas.

In interviews, Boulais said he never knew about his childs foreign status until at least 1995, when the INS placed his son - a convicted felon - in deportation proceedings. He just assumed his child was American like Boulais was, he said.

In 1992, Nguyen had plead guilty to two felony charges of sexual assault on a child. He was sentenced to eight years in prison and started serving his time at the state prison in Huntsville, Texas.

In January 1997, an immigration judge ordered Nguyens deportation on the grounds that he was a foreign convicted felon.

Nguyen, who had never returned to Vietnam, appealed the decision with his father to the Board of Immigration Appeals (BIA).

At the core of Nguyens case is the gender-based difference between mothers and fathers to confer citizenship on their children. Whereas mothers of out-of-wedlock children do not have to formally prove their parenthood in order to legally acknowledge their children; fathers do.

A federal statute (8 U.S.C 1409) requires fathers, who want to acknowledge their out-of-wedlock children, to take the following affirmative steps before their child reaches 18: first to prove their blood relationship to the child, then to agree to provide financial support until the child reaches the age of 18 and finally to acknowledge their child under oath or to have their paternity established by a competent court.

The rationale for this statute is the governments belief that motherhood is easier to prove legally than fatherhood because mothers are present at birth.

While waiting for the BIAs decision, Boulais took steps to prove his fatherhood.

In February 1998, an Order of Parentage from a Texas District Court declared Boulais to be Nguyens father. DNA testing confirmed it to a 99.98 percent of certainty.

But Boulais proof of paternity and Order of Parentage came too late. Nguyen was then 28 years old.

On June 2, 1998, The BIA dismissed Nguyen and Boulais appeal. It also dismissed their motion for reconsideration.

Nguyen and Boulais then appealed to the 5th Circuit Court of Appeals. They argued the federal statute, which imposes different requirements on citizen fathers and citizen mothers to confer citizenship on their out-of-wedlock children, violates the 5th Amendments equal protection guarantee.

A unanimous 5th Circuit panel, citing the 1998 U.S. Supreme Court decision in Miller v. Albright, declared the statute constitutional and dismissed Nguyens appeal, finding that due to Nguyen's status as an alien, the appeals court is precluded from reviewing the BIA's final deportation order.

The 6-3 majority in Miller had concluded that it was constitutional for the government to ensure that there be a reliable proof of blood-tie between the father and the child, thus facilitating a ""healthy relationship"" between the father and the child, and fostering early ties between the child and the United States.

However, the opinions in Miller, were ""fractured,"" according to the 5th Circuit panel, because Filipino Lorelyn Penero Miller could not raise her American fathers claims of equal protection because her father was not a party in the case. Justice John Paul Stevens wrote the plurality opinion, but in the concurrence, Justices Sandra Day O' Connor and Anthony Kennedy noted that the claim might have a different result if Miller were not the one representing her father's gender discrimination claim.

In contrast to the 5th Circuit, the 9th Circuit Court of Appeals in 1999 struck down the Immigration and Nationality Act as unconstitutional.

In U.S. v. Ahumada-Aguilar, the 9th Circuit held the statute unconstitutional and declared Ricardo Ahumada-Aguilar a U.S. citizen because his father was American. In this case, Aguilars father was deceased and had no prior contact with his child. The INS is seeking Supreme Court review.

The U.S Supreme Court granted certiorari to Nguyen and Boulais on Sept. 26, 2000.

Nguyen, now 31, finished serving his felony sentence earlier this year. He awaits the Supreme Court decision in an Immigration and Naturalization Service detention center in Houston.

""In Nguyens case, Vietnam would take him back. Other countries wouldnt,"" said Kathy Parrent from the National Organization for Women, one of Nguyens and Boulais attorneys before the U.S Supreme Court.

""Here is a father that took responsibility for his out-of-wedlock child and what the U.S. Government basically says is that he is not his child,"" Parrent said.

On June 11, 2001, a divided Court held 5-4 that the federal statute does not violate the constitution's equal protection clause because the different requirements on unmarried fathers and unmarried mothers is justified by two important governmental interests:

1) Because a mother's relation is verifiable from the birth itself and is documented by the birth certificate or hospital records, and a father need not be present at the birth, the imposition of different rules to establish parenthood is neither surprising nor troublesome from a constitutional perspective.

(2) Though the interest in ensuring that the child and citizen parent have some demonstrated opportunity to develop a relationship that consists of real, everyday ties inheres in the event of birth in the case of a citizen mother and her child, the same is not necessarily a biological inevitability in the case of an unwed father. He may not know that a child was conceived, and a mother may be unsure of the father's identity.

Equal protection does not require that Congress ignore the reality, for instance, of young men on duty with the Armed Forces in foreign countries, who father a child without following through on the father-child contact during the child's minority, wrote Justice Anthony Kennedy wrote a majority that included Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist.

""To fail to acknowledge even our most basic biological differences -- such as the fact that a mother must be present at birth but the father need not be -- risks making the guarantee of equal protection superficial,"" Kennedy wrote.

Justice Sandra Day O' Connor wrote the dissent for herself and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.