Nguyen v. INS

533 U.S. 53

Case Year: 2001

Case Ruling: 5-4, Affirmed

Opinion Justice: Kennedy

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Court Opinion Joiner(s):

Rehnquist, Scalia, Stevens, Thomas


1st Concurring Opinion

Author: Scalia


1st Dissenting Opinion

Author: O'Connor

Joiner(s): Souter, Ginsburg, Breyer

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2nd Dissenting Opinion



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3rd Dissenting Opinion



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Tuan Anh Nguyen was born in 1969 in Vietnam to an unmarried couple, a Vietnamese woman and Joseph Boulais, an American citizen. After Boulais and Nguyen's mother ended their relationship, Nguyen lived for a time with the family of Boulais's new Vietnamese girlfriend. In June 1975 Nguyen, then almost six years old, came to the United States. He became a lawful permanent resident and was raised in Texas by Boulais.

In 1992, when Nguyen was twenty-two, he pleaded guilty in a Texas state court to two counts of sexual assault of a child. He was sentenced to eight years in prison on each count. Three years later, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Nguyen as an alien who had been convicted of two crimes involving moral turpitude, as well as an aggravated felony. Although he later argued that he was a U.S. citizen, Nguyen testified at his deportation hearing that he was a citizen of Vietnam. The immigration judge ruled that Nguyen could be deported.

While Nguyen's appeal was pending before the Board of Immigration Appeals, Boulais obtained an order of parentage from a state court, based on DNA testing, but the Board dismissed the appeal. It also rejected Nguyen's claim to U.S. citizenship on the grounds that he had not complied with section 1409 of title 8 of the United States Code. This provision governs the citizenship status of a child born out of wedlock and abroad to parents, one of whom is a U.S. citizen and the other a noncitizen. Under section 1409, if the mother is the U.S. citizen, the child is a U.S. citizen at birth. When the father is the citizen parent, however, one of three steps must be taken before the child turns eighteen for the him or her to be a U.S. citizen: legitimization, a declaration of paternity under oath by the father, or a court order of paternity. None of these steps had been taken before Nguyen turned eighteen; therefore, the court ruled that he was ineligible for citizenship.

Nguyen and Boulais appealed to the U.S. Court of Appeals for the Fifth Circuit, where they claimed that section 1409--because it contains different citizenship rules for children born abroad and out of wedlock depending on whether the citizen parent is the mother or the father--violated the equal protection guarantee embedded in the Fifth Amendment's Due Process Clause.



This case presents a question not resolved by a majority of the Court in a case before us three Terms ago. See Miller v. Albright (1998). Title 8 U.S.C. §1409 governs the acquisition of United States citizenship by persons born to one United States citizen parent and one noncitizen parent when the parents are unmarried and the child is born outside of the United States or its possessions. The statute imposes different requirements for the child's acquisition of citizenship depending upon whether the citizen parent is the mother or the father. The question before us is whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment....

Since Miller, the Courts of Appeal have divided over the constitutionality of §1409.... We granted certiorari to resolve the conflict. The father is before the Court in this case; and, as all agree he has standing to raise the constitutional claim, we now resolve it. We hold that §1409(a) is consistent with the constitutional guarantee of equal protection....

For a gender-based classification to withstand equal protection scrutiny, it must be established "`at least that the [challenged] classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives."'" United States v. Virginia (1996) (quoting Mississippi Univ. for Women v. Hogan (1982) in turn quoting Wengler v. Druggists Mut. Ins. Co. (1980)). For reasons to follow, we conclude §1409 satisfies this standard....

The statutory distinction relevant in this case, then, is that section 1409(a)(4) requires one of three affirmative steps to be taken if the citizen parent is the father, but not if the citizen parent is the mother: legitimation; a declaration of paternity under oath by the father; or a court order of paternity. Congress' decision to impose requirements on unmarried fathers that differ from those on unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the time of birth. Specifically, the imposition of the requirement for a paternal relationship, but not a maternal one, is justified by two important governmental objectives. We discuss each in turn.

The first governmental interest to be served is the importance of assuring that a biological parent-child relationship exists. In the case of the mother, the relation is verifiable from the birth itself. The mother's status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth.

In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood.... Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. The imposition of a different set of rules for making that legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective.... Section 1409(a)(4)'s provision of three options for a father seeking to establish paternity--legitimation, paternity oath, and court order of paternity--is designed to ensure an acceptable documentation of paternity....

The second important governmental interest furthered in a substantial manner by section 1409(a)(4) is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.... In the case of a citizen mother and a child born overseas, the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth, an event so often critical to our constitutional and statutory understandings of citizenship. The mother knows that the child is in being and is hers and has an initial point of contact with him. There is at least an opportunity for mother and child to develop a real, meaningful relationship.

The same opportunity does not result from the event of birth, as a matter of biological inevitability, in the case of the unwed father. 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....

When we turn to the conditions which prevail today, we find that the passage of time has produced additional and even more substantial grounds to justify the statutory distinction. The ease of travel and the willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when we contemplate the prospect of accepting petitioners' argument, which would mandate, contrary to Congress' wishes, citizenship by male parentage subject to no condition save the father's previous length of residence in this country. In 1999 alone, Americans made almost 25 million trips abroad, excluding trips to Canada and Mexico....

Principles of equal protection do not require Congress to ignore this reality. To the contrary, these facts demonstrate the critical importance of the Government's interest in ensuring some opportunity for a tie between citizen father and foreign born child which is a reasonable substitute for the opportunity manifest between mother and child at the time of birth. Indeed, especially in light of the number of Americans who take short sojourns abroad, the prospect that a father might not even know of the conception is a realistic possibility.... Even if a father knows of the fact of conception, moreover, it does not follow that he will be present at the birth of the child. Thus, unlike the case of the mother, there is no assurance that the father and his biological child will ever meet. Without an initial point of contact with the child by a father who knows the child is his own, there is no opportunity for father and child to begin a relationship. Section 1409 takes the unremarkable step of ensuring that such an opportunity, inherent in the event of birth as to the mother-child relationship, exists between father and child before citizenship is conferred upon the latter.

The importance of the governmental interest at issue here is too profound to be satisfied merely by conducting a DNA test. The fact of paternity can be established even without the father's knowledge, not to say his presence. Paternity can be established by taking DNA samples even from a few strands of hair, years after the birth.... Yet scientific proof of biological paternity does nothing, by itself, to ensure contact between father and child during the child's minority.

Congress is well within its authority in refusing, absent proof of at least the opportunity for the development of a relationship between citizen parent and child, to commit this country to embracing a child as a citizen entitled as of birth to the full protection of the United States, to the absolute right to enter its borders, and to full participation in the political process. If citizenship is to be conferred by the unwitting means petitioners urge, so that its acquisition abroad bears little relation to the realities of the child's own ties and allegiances, it is for Congress, not this Court, to make that determination. Congress has not taken that path but has instead chosen, by means of §1409, to ensure in the case of father and child the opportunity for a relationship to develop, an opportunity which the event of birth itself provides for the mother and child. It should be unobjectionable for Congress to require some evidence of a minimal opportunity for the development of a relationship with the child in terms the male can fulfill....

... Petitioners and their amici argue ... that, rather than fulfilling an important governmental interest, section 1409 merely embodies a gender-based stereotype. Although the above discussion should illustrate that, contrary to petitioners' assertions, §1409 addresses an undeniable difference in the circumstance of the parents at the time a child is born, it should be noted, furthermore, that the difference does not result from some stereotype, defined as a frame of mind resulting from irrational or uncritical analysis. There is nothing irrational or improper in the recognition that at the moment of birth--a critical event in the statutory scheme and in the whole tradition of citizenship law--the mother's knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype....

Having concluded that facilitation of a relationship between parent and child is an important governmental interest, the question remains whether the means Congress chose to further its objective--the imposition of certain additional requirements upon an unwed father--substantially relate to that end. Under this test, the means Congress adopted must be sustained.

First, it should be unsurprising that Congress decided to require that an opportunity for a parent-child relationship occur during the formative years of the child's minority. In furtherance of the desire to ensure some tie between this country and one who seeks citizenship, various other statutory provisions concerning citizenship and naturalization require some act linking the child to the United States to occur before the child reaches 18 years of age....

Second, petitioners argue that §1409(a)(4) is not effective. In particular, petitioners assert that, although a mother will know of her child's birth, "knowledge that one is a parent, no matter how it is acquired, does not guarantee a relationship with one's child."... They thus maintain that the imposition of the additional requirements of §1409(a)(4) only on the children of citizen fathers must reflect a stereotype that women are more likely than men to actually establish a relationship with their children....

This line of argument misconceives the nature of both the governmental interest at issue and the manner in which we examine statutes alleged to violate equal protection. As to the former, Congress would of course be entitled to advance the interest of ensuring an actual, meaningful relationship in every case before citizenship is conferred. Or Congress could excuse compliance with the formal requirements when an actual father-child relationship is proved. It did neither here, perhaps because of the subjectivity, intrusiveness, and difficulties of proof that might attend an inquiry into any particular bond or tie. Instead, Congress enacted an easily administered scheme to promote the different but still substantial interest of ensuring at least an opportunity for a parent-child relationship to develop. Petitioners' argument confuses the means and ends of the equal protection inquiry; section 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some other alternative....

To fail to acknowledge even our most basic biological differences--such as the fact that a mother must be present at birth but the father need not be--risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real. The distinction embodied in the statutory scheme here at issue is not marked by misconception and prejudice, nor does it show disrespect for either class. The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.

The judgment of the Court of Appeals is



In a long line of cases spanning nearly three decades, this Court has applied heightened scrutiny to legislative classifications based on sex. The Court today confronts another statute that classifies individuals on the basis of their sex. While the Court invokes heightened scrutiny, the manner in which it explains and applies this standard is a stranger to our precedents. Because the Immigration and Naturalization Service (INS) has not shown an exceedingly persuasive justification for the sex-based classification embodied in 8 U.S.C. §1409(a)(4)-- i.e., because it has failed to establish at least that the classification substantially relates to the achievement of important governmental objectives--I would reverse the judgment of the Court of Appeals. Sex-based statutes, even when accurately reflecting the way most men or women behave, deny individuals opportunity. Such generalizations must be viewed not in isolation, but in the context of our Nation's "'long and unfortunate history of sex discrimination.'" J. E. B. v. Alabama ex rel. T. B. (1994) (quoting Frontiero v. Richardson (1973) (plurality opinion)). Sex-based generalizations both reflect and reinforce "fixed notions concerning the roles and abilities of males and females." Mississippi Univ. for Women v. Hogan (1982).

For these reasons, a party who seeks to defend a statute that classifies individuals on the basis of sex "must carry the burden of showing an `exceedingly persuasive justification' for the classification."... The defender of the classification meets this burden "only by showing at least that the classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Mississippi Univ. for Women.

Our cases provide significant guidance concerning the meaning of this standard and how a reviewing court is to apply it....

The Court recites the governing substantive standard for heightened scrutiny of sex-based classifications, ... but departs from the guidance of our precedents concerning such classifications in several ways. In the first sentence of its equal protection analysis, the majority glosses over the crucial matter of the burden of justification.... In other circumstances, the Court's use of an impersonal construction might represent a mere elision of what we have stated expressly in our prior cases. Here, however, the elision presages some of the larger failings of the opinion.

For example, the majority hypothesizes about the interests served by the statute and fails adequately to inquire into the actual purposes of §1409(a)(4). The Court also does not always explain adequately the importance of the interests that it claims to be served by the provision. The majority also fails carefully to consider whether the sex-based classification is being used impermissibly "as a `proxy for other, more germane bases of classification,' " Mississippi Univ. for Women, and instead casually dismisses the relevance of available sex-neutral alternatives. And, contrary to the majority's conclusion, the fit between the means and ends of §1409(a)(4) is far too attenuated for the provision to survive heightened scrutiny. In all, the majority opinion represents far less than the rigorous application of heightened scrutiny that our precedents require. According to the Court, "[t]he first governmental interest to be served is the importance of assuring that a biological parent-child relationship exists."... The majority does not elaborate on the importance of this interest, which presumably lies in preventing fraudulent conveyances of citizenship. Nor does the majority demonstrate that this is one of the actual purposes of §1409(a)(4). Assuming that Congress actually had this purpose in mind in enacting parts of §1409(a)(4), the INS does not appear to rely on this interest in its effort to sustain §1409(a)(4)'s sex-based classification.... In light of the reviewing court's duty to "determine whether the proffered justification is 'exceedingly persuasive,'" Virginia, this disparity between the majority's defense of the statute and the INS' proffered justifications is striking, to say the least....

The majority concedes that Congress could achieve the goal of assuring a biological parent-child relationship in a sex-neutral fashion, but then, in a surprising turn, dismisses the availability of sex-neutral alternatives as irrelevant. As the Court suggests, "Congress could have required both mothers and fathers to prove parenthood within 30 days or, for that matter, 18 years, of the child's birth."... Indeed, whether one conceives the majority's asserted interest as assuring the existence of a biological parent-child relationship, ... or as ensuring acceptable documentation of that relationship, ... a number of sex-neutral arrangements--including the one that the majority offers--would better serve that end. As the majority seems implicitly to acknowledge at one point, ... a mother will not always have formal legal documentation of birth because a birth certificate may not issue or may subsequently be lost. Conversely, a father's name may well appear on a birth certificate. While it is doubtless true that a mother's blood relation to a child is uniquely "verifiable from the birth itself" to those present at birth, ... the majority has not shown that a mother's birth relation is uniquely verifiable by the INS, much less that any greater verifiability warrants a sex-based, rather than a sex-neutral, statute.

In our prior cases, the existence of comparable or superior sex-neutral alternatives has been a powerful reason to reject a sex-based classification.... The majority, however, turns this principle on its head by denigrating as "hollow" the very neutrality that the law requires.... While the majority trumpets the availability of superior sex-neutral alternatives as confirmation of §1409(a)(4)'s validity, our precedents demonstrate that this fact is a decided strike against the law. Far from being "hollow," the avoidance of gratuitous sex-based distinctions is the hallmark of equal protection....

The Court states that "[t]he second important governmental interest furthered in a substantial manner by §1409(a)(4) is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States."... The Court again fails to demonstrate that this was Congress' actual purpose in enacting §1409(a)(4). The majority's focus on "some demonstrated opportunity or potential to develop ... real, everyday ties," in fact appears to be the type of hypothesized rationale that is insufficient under heightened scrutiny....

The INS asserts the governmental interest of "ensuring that children who are born abroad out of wedlock have, during their minority, attained a sufficiently recognized or formal relationship to their United States citizen parent--and thus to the United States--to justify the conferral of citizenship upon them."... The majority's asserted end, at best, is a simultaneously watered-down and beefed-up version of this interest asserted by the INS. The majority's rendition is weaker than the INS' in that it emphasizes the "opportunity or potential to develop" a relationship rather than the actual relationship about which the INS claims Congress was concerned. The majority's version is also stronger in that it goes past the formal relationship apparently desired by the INS to "real, everyday ties."

Assuming, as the majority does, that Congress was actually concerned about ensuring a "demonstrated opportunity" for a relationship, it is questionable whether such an opportunity qualifies as an "important" governmental interest apart from the existence of an actual relationship. By focusing on "opportunity" rather than reality, the majority presumably improves the chances of a sufficient means-end fit. But in doing so, it dilutes significantly the weight of the interest. It is difficult to see how, in this citizenship-conferral context, anyone profits from a "demonstrated opportunity" for a relationship in the absence of the fruition of an actual tie. Children who have an "opportunity" for such a tie with a parent, of course, may never develop an actual relationship with that parent.... If a child grows up in a foreign country without any post birth contact with the citizen parent, then the child's never-realized "opportunity" for a relationship with the citizen seems singularly irrelevant to the appropriateness of granting citizenship to that child. Likewise, where there is an actual relationship, it is the actual relationship that does all the work in rendering appropriate a grant of citizenship, regardless of when and how the opportunity for that relationship arose.

Accepting for the moment the majority's focus on "opportunity," the attempt to justify §1409(a)(4) in these terms is still deficient. Even if it is important "to require that an opportunity for a parent-child relationship occur during the formative years of the child's minority," ... it is difficult to see how the requirement that proof of such opportunity be obtained before the child turns 18 substantially furthers the asserted interest. As the facts of this case demonstrate, ... it is entirely possible that a father and child will have the opportunity to develop a relationship and in fact will develop a relationship without obtaining the proof of the opportunity during the child's minority....

Moreover, available sex-neutral alternatives would at least replicate, and could easily exceed, whatever fit there is between §1409(a)(4)'s discriminatory means and the majority's asserted end. According to the Court, § 1409(a)(4) is designed to ensure that fathers and children have the same "opportunity which the event of birth itself provides for the mother and child."... Even assuming that this is so, Congress could simply substitute for §1409(a)(4) a requirement that the parent be present at birth or have knowledge of birth.... Congress could at least allow proof of such presence or knowledge to be one way of demonstrating an opportunity for a relationship. Under the present law, the statute on its face accords different treatment to a mother who is by nature present at birth and a father who is by choice present at birth even though those two individuals are similarly situated with respect to the "opportunity" for a relationship. The mother can transmit her citizenship at birth, but the father cannot do so in the absence of at least one other affirmative act. The different statutory treatment is solely on account of the sex of the similarly situated individuals. This type of treatment is patently inconsistent with the promise of equal protection of the laws....

Indeed, the idea that a mother's presence at birth supplies adequate assurance of an opportunity to develop a relationship while a father's presence at birth does not would appear to rest only on an overbroad sex-based generalization. A mother may not have an opportunity for a relationship if the child is removed from his or her mother on account of alleged abuse or neglect, or if the child and mother are separated by tragedy, such as disaster or war, of the sort apparently present in this case. There is no reason, other than stereotype, to say that fathers who are present at birth lack an opportunity for a relationship on similar terms. The "[p]hysical differences between men and women," Virginia, therefore do not justify §1409(a)(4)'s discrimination.... 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.