Gender, Equal Protection & Immigration SCOTUS grants cert in Flores-Villar: Analysis

The question is a narrow one: : whether the court's decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?

Recall that the Court in Nguyen upheld 8 U. S. C. § 1409 which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States - - -  survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.”  The Majority found that the statute served two important governmental interests:  the importance of assuring that a biological parent-child relationship exists and the importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”   The Court in Nguyen relied on biological reasoning: women give birth and men may not even realize their paternity, concluding:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam.  Although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity and the father obtained an order of parentage from a state court. 

The Court's grant of certiorari  in Flores-Villar will involve a reconsideration of Nguyen.  Flores-Villar was born in Tijuana, Mexico 1974 to a non-citizen mother and a United States citizen father who, importantly,  was sixteen at the time.   His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old.  He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985.  Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.  Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

The Ninth Circuit upheld the statutory scheme, holding that avoiding 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, and that the means chosen substantially further the objectives.  The Court stated: "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.”

This “fit” will certainly be at issue before the United States Supreme Court.  Justice O’Connor’s dissenting opinion in Nguyen, joined by Souter, Ginsburg, and Breyer,  stressed the heightened scrutiny required by Virginia v. US (VMI) with its requirement of a closer fit between the “discriminatory” means chosen and gender stereotypes.   The dissenting Justices reasoned that the statute was “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children” and could easily be rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement - - - and not, as in Nguyen, a relationship with child requirement - - - the “fit” may not be sufficiently tight.  If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.”   However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.  Balancing gender equality and citizenship will be the task for the Court - - - a task which the newest Justice will certainly undertake.

RR