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Supreme Court to Decide Constitutionality of Citizenship Law
by Carl R. Baldwin

On September 26, 2000, the U.S. Supreme Court granted certiorari in the case of Nguyen v. INS to resolve a conflict among the circuits on whether Section 309 of the Immigration and Nationality Act violates equal protection by treating mothers more generously than fathers when it comes to conferring U.S. citizenship upon their offspring.

Section 309 grants citizenship at birth to the foreign-born out-of-wedlock child of a U.S. citizen mother if the mother establishes that she had maintained physical presence in the United States for a continuous period of one year. By contrast, it requires the father, in addition to establishing physical presence, to undertake affirmative measures before his foreign-born out-of-wedlock child can acquire U.S. citizenship. The father must establish a blood relationship with the child by clear and convincing evidence; agree in writing to provide financial support until the child reaches 18; legitimate the child while the child is under 18; acknowledge paternity in writing under oath, or have a court adjudicate paternity. The matter is of some urgency to the petitioner son: if he is considered to be an alien and not a United States citizen he would be removable to Vietnam, a country he has not seen since infancy, for having committed an aggravated felony.

Section 309, the petitioners argue, embodies a stereotype about a mother’s greater closeness to a child and a father’s greater distance from the child. The petitioners review Supreme Court cases and conclude from them that this kind of gender-based stereotype is generally disapproved by the court. Reviewing the facts of the case, the petitioners have this to say: “The facts here demonstrate the consequence for individuals when gender stereotypes define their statutory rights. Nguyen’s mother disappeared in war torn Vietnam soon after his birth. Defying the stereotype, and accepting full responsibility for his child, Boulais (the father) cared for his son first in Vietnam and later in the United States.” The father provided for his son throughout his minority, but did not take the steps delineated in Section 309 to legitimate his son prior to the son’s eighteenth birthday. He therefore cannot confer citizenship upon his son. As the petitioners state: “This case clearly underscored the danger…of permitting sex-based stereotypes to define legal rights.”

The Supreme Court must now resolve a conflict among the circuits. The Fifth Circuit held that the requirements of Section 309 were “well-tailored” to meet the government objectives of encouraging ties during a child’s formative years between the child, the citizen parent, and the United States, and by ensuring proof of a biological relation between parent and child. Nguyen v. INS, 208 F. 3d 528 (2000). The Ninth Circuit, by contrast, found that the provisions of Section 309 were based on “outdated stereotypes that mothers are more likely to have close ties and care for their children than are fathers.” The court therefore struck down Section 309 as violating the equal protection clause of the Fourteenth Amendment. USA v. Ahumada Aguilar, 189 F. 3d 1121 (1999). The Second Circuit very recently (on October 19, 2000) joined the Ninth Circuit in finding that Section 309 violated the equal protection clause. Lake v. Reno, 226 F. 3d 141 (2000).

The stage is now set for Supreme Court review. When the Court previously wrestled with the constitutionality of Section 309 in Miller v. Albright, 523 U.S. 488 (1998), it voted 6-3 to uphold the statute. But in that case only the daughter of the U.S. citizen father was the petitioner, and the father was not involved. In the present case both father and son are petitioners, and it is therefore very possible that the Court will be persuaded, in the light of its insistence on “heightened scrutiny” where gender-based distinctions are involved, to strike down Section 309 on equal protection grounds.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from

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