No. 99-2071
In the Supreme Court of the United States
TUAN ANH NGUYEN AND JOSEPH BOULAIS, PETITIONERS
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
MICHAEL JAY SINGER
JOHN S. KOPPEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Under Section 309(a) of the Immigration and Nationality Act, 8 U.S.C. 1409(a),
a child born abroad out of wedlock to a father who is a citizen of the United
States and a mother who is not a citizen becomes a citizen of the United
States, as of his date of birth, only if, inter alia, paternity is formally
established by legitimation, written acknowledgment, or court decree while
the child is under the age of 18, and the father agrees in writing to provide
financial support for the child during the child's minority. Section 309(c)
of the INA, 8 U.S.C. 1409(c), permits a child born abroad out of wedlock
to claim citizenship on the basis of his relation to a citizen mother, so
long as the mother had previously been physically present in the United
States, before the child's birth, for a continuous period of at least one
year. The question presented is as follows:
Whether the requirements for transmission of citizenship imposed upon United
States citizen fathers by Section 1409(a) violate the equal protection component
of the Due Process Clause.
In the Supreme Court of the United States
No. 99-2071
TUAN ANH NGUYEN AND JOSEPH BOULAIS, PETITIONERS
v.
IMMIGRATION AND NATURALIZATION SERVICE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 208
F.3d 528. The opinion of the Board of Immigration Appeals on reconsideration
(Pet. App. 14a-16a) is unreported. The initial opinion of the Board of Immigration
Appeals (Pet. App. 17a-19a) is unreported. The deportation order of the
immigration judge (Pet. App. 20a-21a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on April 17, 2000. The
petition for a writ of certiorari was filed on June 26, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Section 309(a) of the Immigration and Nationality Act (INA), 8 U.S.C.
1409(a), permits a child born outside the United States to unmarried parents
to claim United States citizenship on the basis of the child's relation
to a United States citizen father, so long as (i) there is "clear and
convincing evidence" of a blood relationship between the child and
the father, (ii) the father agrees in writing to provide financial support
for the child while the child is under the age of 18, and (iii) before the
child turns 18 there is some formal legal acknowledgment of paternity, either
by legitimation under the laws of the child's residence or domicile, by
adjudication of a competent court, or simply by the father's execution of
an acknowledgment in writing under oath. The citizen father must also meet
a residency requirement imposed through Section 1409(a), by 8 U.S.C. 1401(c),
(d), (e), or (g). Section 309(c) of the INA, 8 U.S.C. 1409(c), permits a
child born abroad out of wedlock to claim citizenship on the basis of his
relation to a United States citizen mother, so long as the mother had previously
been physically present in the United States, before the child's birth,
for a continuous period of at least one year.
2. In Miller v. Albright, 523 U.S. 420 (1998), this Court considered, but
failed definitively to resolve, the question whether Section 1409(a) violates
the equal protection component of the Due Process Clause of the Fifth Amendment.
Two Members of the Court concluded that Section 1409(a) does not violate
the equal protection rights of either the child or the citizen father. See
id. at 432-445 (opinion of Stevens, J.). Two Justices agreed that the statute
does not violate the child's equal protection rights. Id. at 451-452 (O'Connor,
J., concurring in the judgment). Those Justices declined to consider whether
the statute unconstitutionally discriminates against citizen fathers, since
the father involved in that case had abandoned his equal protection claim
and was not a party in this Court, and the child did not, in the view of
those Justices, have third-party standing to raise the father's equal protection
rights. Id. at 445-451. Two Justices declined to address the constitutional
claim of either the father or the child on the ground that the Court would
lack power to confer citizenship as a remedy even if the statute were held
to be unconstitutional. Id. at 452-459 (Scalia, J., concurring in the judgment).
Three Justices would have held that the statute is unconstitutional. Id.
at 461-471 (Ginsburg, J., dissenting); id. at 471-490 (Breyer, J., dissenting).
3. Petitioner Tuan Anh Nguyen was born in South Vietnam on September 11,
1969. His mother, a Vietnamese citizen, abandoned him at birth. His natural
father is petitioner Joseph Alfred Boulais, an American citizen. In June
1975, Nguyen came to the United States as a refugee, and he subsequently
became a lawful permanent resident. He was raised in Texas by Boulais. Pet.
App. 2a.
On August 28, 1992, Nguyen pleaded guilty in Texas state court to two felony
charges of sexual assault on a child, and he was sentenced to eight years
in prison for each crime. The Immigration and Naturalization Service (INS)
subsequently initiated deportation proceedings against him. The gravamen
of the deportation charges was that Nguyen was deportable under 8 U.S.C.
1251(a)(2)(A)(ii)-(iii) as an alien who had been convicted of two crimes
involving moral turpitude, as well as an aggravated felony. Pet. App. 2a.
In the course of the deportation proceedings, Nguyen sought to challenge
the show cause order on the ground that he is a United States citizen. He
ultimately testified under oath, however, that he was not a citizen of the
United States, but a citizen of Vietnam, and he admitted that he was convicted
of the aforementioned crimes. The immigration judge found Nguyen to be deportable,
and Nguyen appealed to the Board of Immigration Appeals (BIA). Pet. App.
3a.
While the BIA appeal was pending, petitioner Boulais instituted a paternity
proceeding in a Texas state court. Pet. App. 3a. In February 1998, he obtained
an "Order of Parentage" (based upon DNA test results) adjudging
him to be Nguyen's father. Ibid. The BIA nevertheless dismissed his appeal
(id. at 17a-19a), explaining that Nguyen had "failed to provide the
Immigration Judge with evidence to support [his] citizenship claim,"
id. at 17a-18a. The BIA subsequently denied Nguyen's motion for reconsideration,
relying in part on this Court's decision in Miller. Id. at 14a-16a.
4. Petitioners Nguyen and Boulais sought review of the BIA's decision in
the court of appeals.1 The INS moved to dismiss petitioners' appeal for
lack of jurisdiction. The INS relied on Section 309(c)(4)(G) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, 110 Stat. 3009-626 to 3009-627, which provides that "there
shall be no appeal permitted in the case of an alien who is inadmissible
or deportable by reason of having committed" specified criminal offenses.
See Pet. App. 4a. The court of appeals granted the government's motion to
dismiss the petition for review. Id. at 1a-13a.
The court of appeals stated that because there was no dispute that Nguyen
had been convicted of crimes covered by IIRIRA § 309(c)(4)(G), the
court would lack jurisdiction over the appeal if Nguyen were in fact an
alien. Pet. App. 4a-5a. The court therefore held that the "determin[ation]
whether Nguyen is a citizen" was "a threshold question in the
determination of [the court's] jurisdiction." Id. at 5a. The court
of appeals treated the state court's "Order of Parentage" as conclusively
"establishing[ing] that Boulais is Nguyen's biological father."
Id. at 6a. The court found on that basis that "there [we]re no genuine
issues of material fact regarding Nguyen's nationality leaving this court
to determine whether Nguyen is a citizen of the United States." Ibid.
The court of appeals found it "clear that Nguyen has failed to establish
the citizenship requirements outlined in" 8 U.S.C. 1409, since "Boulais
failed to 'legitimate' Nguyen before his eighteenth birthday by acknowledging
paternity in writing or establishing Nguyen's paternity in a court of competent
jurisdiction." Pet. App. 8a. The court therefore addressed petitioners'
contention that the requirements of 8 U.S.C. 1409(a) should not be applied
to Nguyen's claim of citizenship on the ground that Section 1409(a) violates
the equal protection component of the Due Process Clause. In analyzing the
constitutional issue, the court considered the impact of the statutory scheme
both on Nguyen and on Boulais. The court explained that Boulais-unlike the
father in Miller-had "made every effort to represent his own interests
in the present suit" and therefore "should be allowed to represent
his own interest in the present action." Pet. App. 9a.
On the merits, principally for the reasons stated in Justice Stevens's opinion
in Miller, the court of appeals held that Section 1409(a) is constitutional.
Pet. App. 11a-13a. The court explained that the statute "helps to ensure
reliable proof of a biological relationship between the citizen parent and
the child," and is "well tailored to meet the important governmental
objectives of encouraging healthy parent-child relationships while the child
is a minor, and fostering ties between the foreign born child [and] the
United States." Id. at 12a. Having rejected petitioners' constitutional
challenge to Section 1409(a), the court concluded that "Nguyen does
not meet the [statutory] criteria for citizenship" and that his petition
for review of the deportation order should be dismissed. Id. at 13a. The
court explained that Boulais did not establish Nguyen's paternity before
he reached the age of majority. Although Boulais has now obtained an order
of parentage that order was decreed in 1998, and Nguyen was twenty eight
years old. Thus, due to Nguyen's status as an alien, under IIRIRA this court
is precluded from reviewing the BIA's final deportation order. Thus, we
grant the INS's motion to dismiss the appeal.
Ibid.
DISCUSSION
The Fifth Circuit in this case upheld Section 1409(a) against petitioners'
equal protection challenge. That decision is correct. As petitioners explain
(Pet. 10-11), however, the Fifth Circuit's ruling squarely conflicts with
the Ninth Circuit's decision in United States v. Ahumada-Aguilar, 189 F.3d
1121, 1125-1127 (1999), petition for cert. pending, No. 99-1872, which held
that Section 1409(a) violates the equal protection rights of citizen fathers.
We agree with petitioners that the constitutional issue warrants review
by this Court, in view of the circuit conflict on the issue and the recurring
nature of the question.2
The government has filed a petition for a writ of certiorari in Ahumada-Aguilar.3
In our view, however, the instant case provides a better vehicle for ultimate
resolution of the constitutional issue by this Court. Ahumada-Aguilar (like
Miller) presents the threshold question whether an individual who bases
his claim to citizenship on a constitutional challenge to Section 1409(a)
may assert the equal protection rights of his father. Although the Ninth
Circuit held that Ahumada-Aguilar had third-party standing to assert his
father's rights because the father is deceased, see 189 F.3d at 1126, our
petition in that case explains (at 10-16) why that holding is erroneous.
Thus, while we believe that the Ninth Circuit's decision in Ahumada-Aguilar
warrants reversal by this Court, we do not believe that the equal protection
claim brought on behalf of the citizen father is properly presented in that
case.
We suggested in our certiorari petition in Ahumada-Aguilar that the Court
might wish to consider summary reversal of the judgment of the Ninth Circuit
in that case on third-party standing grounds. We explained that summary
reversal on that ground would eliminate the Ninth Circuit's judgment holding
an Act of Congress unconstitutional, the circuit conflict on the constitutional
issue, and the prospect that the Court would grant plenary review due to
the Ninth Circuit's constitutional ruling only to find itself precluded
from reaching that issue because of the threshold standing obstacle. See
99-1872 Pet. at 16-17, 22, 23. The instant case, by contrast, presents no
third-party standing issue, because the father whose equal protection rights
are alleged to have been violated was a party in the court of appeals and
is a petitioner in this Court. We therefore believe it would be appropriate
for the Court to grant certiorari in this case and to hold our petition
in Ahumada-Aguilar pending the Court's decision in this case.4
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
MICHAEL JAY SINGER
JOHN S. KOPPEL
Attorneys
AUGUST 2000
1 Petitioners also filed a habeas corpus petition in the United States District
Court for the Southern District of Texas, which was held in abeyance pending
the court of appeals' decision. Pet. App. 4a & n.2.
2 The Second Circuit has not yet rendered its decision in Lake v. Reno,
No. 99-4125 (argued Mar. 31, 2000), which, as petitioners note (Pet. 14),
presents the same issue.
3 We are furnishing petitioners' counsel with copies of the petition and
reply brief filed by the government in Ahumada-Aguilar.
4 The government does not dispute that petitioner Boulais is petitioner
Nguyen's natural father, or that Boulais's equal protection rights may properly
be resolved in this case. We note that, if the Court were to find 8 U.S.C.
1409(a) unconstitutional, it would need to decide a remedial question presented
but not resolved in Miller-i.e., whether a court has the power to declare
petitioner Nguyen to be a citizen of the United States despite the absence
of a statute conferring citizenship. Compare Miller, 523 U.S. at 452-459
(Scalia, J., concurring in the judgment) (concluding that a court lacks
the power to confer citizenship on a foreign-born individual in the absence
of a statute that provides for citizenship, even as a remedy for a constitutional
infirmity in the citizenship statute itself), with id. at 445 n.26 (opinion
of Stevens, J.) (noting but not reaching remedial issue); id. at 451 (O'Connor,
J., concurring in the judgment) (citing Justice Scalia's opinion and acknowledging
the "potential problems with fashioning a remedy"); id. at 488-490
(Breyer, J., dissenting) (concluding that the Court may appropriately declare
the plaintiff to be a citizen). See also INS v. Pangilinan, 486 U.S. 875,
885 (1988) (where Congress has set specific statutory limits on a provision
for naturalization, "[n]either by application of the doctrine of estoppel,
nor by invocation of equitable powers, nor by any other means does a court
have the power to confer citizenship in violation of [those] limitations").
That remedial issue, however, will presumably be implicated by every constitutional
challenge to Section 1409(a).