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Supreme Court Decision in Nguyen v. INS Provokes Strong Dissent
by Carl R. Baldwin

On June 11, 2001 the Supreme Court issued its decision in Nguyen v. INS, No. 99-2071, upholding the constitutionality of Section 309 of the Immigration and Nationality Act, which treats mothers and fathers differently when it comes to the conferral of US citizenship upon their out of wedlock foreign-born children. The 5-4 majority opinion provoked a vigorous dissent.

By way of background, the statute provides that a US citizen mother can confer citizenship automatically to an out of wedlock child born abroad if she proves one year of prior physical presence in the United States. But a US citizen father, in addition to a five year physical presence requirement, can confer citizenship only if the blood relationship of father and child is shown by clear and convincing evidence, and the father, in addition to agreeing in writing to provide financial support until the child reaches 18 years of age, does one of three things while the child is under 18: legitimates the child, acknowledges paternity in writing and under oath, or has a court establish paternity. INA 309(a)(1-4).

The father in this case provided care and support until the child was 18, both in Vietnam and the United States, but did not take the steps required by the statute to confer citizenship. His son is therefore an alien, and is now on the brink of deportation to Vietnam, a country he has not seen since infancy, for having been convicted of an aggravated felony.

When I wrote an article on this case for my web site before the oral argument, I thought that there was a good chance that the Court would find that the statute violated equal protection and did not comport with the Court’s jurisprudence on gender-based discrimination. That is not, however, how the majority saw it.

The Court split 5-4, with Justice Kennedy writing the opinion for the majority. He was joined by Justices Scalia, Thomas, Rehnquist, and Stevens, the latter usually regarded as one of the most liberal Justices (recall his blistering dissent in Bush v. Gore). The dissenters were Justices Breyer, Souter, Ginsberg, and O’Connor, the latter often voting with the so-called “conservatives,” but in this case adopting and expounding the equal protection argument.

The majority made short shrift of the equal protection arguments of the petitioners: “A statute meets the equal protection standard we here apply so long as it it ‘substantially related to the achievement of’ the governmental objective in question (citations omitted). It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond. None of our gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every case.” (Petitioners had pointed out that in this case the mother did not foster any parent-child bond and that the father assumed the role that the statute presumed would be filled by the mother.)

The Court mentioned but did not decide (given its equal protection holding) a point that the INS had put forward: regardless of the merits of the equal protection argument, the Court had no authority to fashion a rule concerning citizenship that had not been approved by Congress. This point was adopted and emphasized by Justice Scalia in his concurring opinion.

Justice O’Connor, writing the dissent that was joined by Justices Breyer, Souter, and Ginsberg, pointed out that the statutory provision in question dated back to 1940, long before courts began to fashion a jurisprudence of gender-based discrimination.

The dissent observed: “Section 1409(a)(4) (INA 309 (a)(4)) is thus paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children. Under this law, as one advocate explained to Congress in a 1932 plea for a sex-neutral citizenship law, ‘when it comes to the illegitimate child, which is a great burden, then the mother is the only recognized parent, and the father is put safely in the background.’ ” The dissent was startled and chagrined that this rationale, so apparent and seemingly self-evident in 1932, still held sway in the Court.

As to the argument that the INS had put forward, and that Justice Scalia adopted, to the effect that the Court could not fashion a remedy if Congress had not approved one, the dissent pointed out that the cases so holding pertained to naturalization, and were simply not relevant to the question of citizenship at birth.

Justice O’Connor’s concluding paragraph is worth quoting in full: “No one should mistake the majority’s analysis for a careful application of this Court’s equal protection jurisprudence concerning sex-based classifications. Today’s decision instead represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny to such classifications to determine whether a constitutional violation has occurred. I trust that the depth and vitality of these precedents will ensure that today’s error remains an aberration. I respectfully dissent.”

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 reached 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