BREAKING NEWS: Divided Court Affirms Ninth Circuit in Flores-Villar v. United States

Today, the Supreme Court by a 4-4 vote, with Justice Kagan not participating in the consideration of the case, affirmed the Ninth Circuit's decision in Flores-Villar v. United States.   For briefs and other materials related to the case, click here and here.

Flores-Villar was born in Mexico to an U.S. citizen father and Mexican mother; the parents were not married. Under U.S. immigration law, American mothers need only to have lived in the United States continuously for a year before the birth of a child for the child to be a U.S. citizen. The period is five years for a citizen father.  Ruben Flores-Villar raised an Equal Protection challenge to the law.  

The Ninth Circuit ruled that the issue was resolved by the Supreme Court’s opinion in Nguyen v. INS, 533 U.S. 53 (2001), which held that legitimation requirements for U.S. citizen fathers, but not for citizen mothers, did not offend principles of equal protection.  The court therefore rejected the constitutional challenge.  The Supreme Court today affirmed the decision.

An affirmance by an equally divided Court, of course, has limited precedential value.  It does suggest that, in close cases, Justice Kagan's participation will prove to be important -- and possibly dispositive.

KJ