SEX DISCRIMINATION AT OUR BORDERS? THE SUPREME COURT’S NGUYEN CASE - PART I

This article is Part One of a two-part series by Professor Dorf on the pending Supreme Court case of Nguyen v. INS. Part Two, which appears simultaneously, may be found in Writ, just below this article. – Ed.

On January 9th, the Supreme Court heard oral argument in Nguyen v. INS. The case poses a challenge to a provision of the Immigration and Naturalization Act that makes it easier for American women to confer citizenship on their children born out of wedlock outside the U.S., than it is for American men to do the same thing.

Because it expressly discriminates on the basis of sex, this law appears to violate the Constitution's guarantee of equal protection. The appearance may be deceptive, however.

The government argues that Nguyen falls within the so-called "plenary power doctrine," under which Congress has virtual carte blanche to regulate immigration and naturalization. By contrast, the petitioners argue that the case falls outside the plenary power doctrine.

Is the challenged provision valid? I consider the equal protection issue here. Part Two addresses the plenary power doctrine.

While working in Vietnam, U.S. citizen Joseph Boulais fathered a son by a woman who was a Vietnamese national, to whom Boulais was not married. From infancy, that boy, Tuan Anh Nguyen, lived with Boulais — who married a different woman, also a Vietnamese national, shortly after the boy's birth.

Boulais, his wife, and their child, Nguyen, moved to the United States when Nguyen was six. Boulais and his wife raised Nguyen to adulthood in the United States and since infancy Nguyen has had no contact with his biological mother. (Indeed, neither Boulais nor Nguyen even knows whether she survived the Vietnam War.)

In an adversarial legal system such as our own, unsavory characters are often the ones who seek to establish constitutional principles. That is true here. In a 1992 Texas proceeding, Nguyen pled guilty to two counts of felony sexual assault on a child. Three years later, the I.N.S. sought to have Nguyen deported.

A U.S. citizen cannot be deported, even if he has committed a serious crime. Nguyen, however, is not a U.S. citizen. A provision of the Immigration and Nationality Act requires a U.S. citizen who is the father of a child born out of wedlock on foreign soil to take formal measures acknowledging paternity before the child's eighteenth birthday, in order for the child to become a U.S. citizen as well. But while Boulais acknowledged paternity of Nguyen, and confirmed it to a near-certainty through genetic testing, he did not do so until after Nguyen turned eighteen. Under the statute, then, Nguyen remains an alien, and therefore deportable.

So far, Nguyen's deportation would appear to be legally proper. But here is the wrinkle: Had Nguyen been born to an American mother, rather than an American father, he would be a U.S. citizen. That is because, under the Immigration and Naturalization Act, motherhood (unlike fatherhood) need not be formally acknowledged before the child reaches the age of eighteen for the child to become a citizen.

Because the law makes greater demands of men than of women, the petitioners argue that it violates the constitutional principle of equal protection. Under the current legal standard — set forth in United States v. Virginia, the Court's 1996 decision striking down the Virginia Military Academy's all-male admissions policy — official distinctions based on sex will only be upheld if the government offers an "exceedingly persuasive justification" for them. According to the petitioners, no such justification has been offered for the Immigration and Naturalization Act section at issue.

Instead, that section, the petitioners claim, rests on the impermissible stereotyped assumption that only biological mothers, and not biological fathers have natural bonds to their children. As this case itself reveals, there are mothers and fathers who defy the stereotype. A false gender stereotype, petitioners contend, cannot be the basis for federal law — even if that law is in the general area of immigration and naturalization.

The government responds that the distinction drawn by the statute is not an instance of sex-stereotyping but a response to a practical problem caused by conflicting laws in different countries.

Our Constitution's Fourteenth Amendment makes everyone born in the United States a U.S. citizen. As a constitutional matter, the U.S. is thus what is known as a jus soli jurisdiction. Many foreign nations, however, are jus sanguinis jurisdictions, meaning that there, citizenship is determined by blood, rather than place of birth.

Within a jus sanguinis jurisdiction, a child born out of wedlock typically takes the citizenship of the mother. Hence, a child born out of wedlock to a U.S. citizen father and a foreign mother (as Nguyen was) is a citizen of the country of birth. In contrast, a child born out of wedlock to a U.S. citizen mother while she is out of the country may be stateless.

How could that happen? Simple. The child is not a citizen of his or her country of birth — which presumes the child's citizenship will follow that of the mother. But the foreign country's presumption is wrong: As far as the U.S. Constitution is concerned, the child is not a U.S. citizen, despite the fact that his mother is, for the child was not born on U.S. soil. Thus, the child would not be a citizen of any country, unless Congress passed a law conferring citizenship beyond the constitutional minimum.

In response to this anomaly, the government argues, Congress made it especially easy for U.S. citizen mothers to transmit U.S. citizenship to their out-of-wedlock children born overseas. It is permissible to impose additional requirements on U.S. citizen fathers, the government contends, because their out-of-wedlock children do not face the same risk of statelessness.

It remains to be seen whether this distinction between mothers and fathers counts as the sort of "exceedingly persuasive justification" that United States v. Virginia requires as the grounds for sex-based classifications. Even if the statelessness worry is real, after all, that worry itself may be a product of stereotypical assumptions in the law of foreign jus sanguinis jurisdictions — which may presume the child's citizenship follows the mother's precisely because of the same stereotyped belief to which petitioners object, namely, that the mother's bonds "naturally" exceed the father's.

In other contexts, at least, the Supreme Court has said that the government cannot respond to discrimination by other parties in ways that implicitly or explicitly ratify that discrimination. That principle is a potentially wide-ranging one that could also counsel, for example, against courts' using servicemembers' homophobia as a justification for a "don't ask, don't tell" policy. The principle might also provide a basis for invalidating the U.S. law at issue in Nguyen, on the ground that it cannot be justified as a response to the sexist laws of other countries.

In any event, though, the Court will only reach the equal protection issue if it first decides that the plenary power doctrine does not apply to the case. Part Two addresses the scope of that doctrine.

Part II of Professor Dorf's Article