Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen Mother

This post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.

Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U.S. citizen father than through an unwed U.S. citizen mother. Today, the Supreme Court agreed to decide whether one of the added difficulties—a length-of-residence requirement for the father—is constitutional (and in an illegal reentry case, no less).

The requirements for transmitting citizenship are described in 8 U.S.C. §§ 1401 and 1409 (alias: INA §§ 301 and 309), and those statutes have been amended a number of times. Typically, these cases involve a child born outside the United States when one parent is a U.S. citizen and the other parent is not.

When a child is born out-of-wedlock to a U.S. citizen mother, the child acquires U.S. citizenship at birth "if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year." 8 U.S.C. § 1409(c). But if the child is born out-of-wedlock to a U.S. citizen father, the child must prove 1) that the father was present in the U.S. for a certain number of years before the child's birth, and 2) that the father took certain official steps acknowledging or legitimating paternity. § 1409(a). The Supreme Court first considered the constitutionality of this scheme in Miller v. Albright, but the Court failed to reach a majority opinion. In Nguyen v. INS, the Court upheld the legitimation requirement against an equal protection challenge.

Today, the Supreme Court granted certiorari in Flores-Villar v. United States, No. 09-5081, to address the unequal residency requirements for citizenship transmission. Prior to an amendment in 1986, an alien seeking citizenship through a citizen father had to show that the father was present in the United States for ten years prior to his birth, at least five of which were after the father reached the age of 14. Under current law (applicable to anyone born after November 14, 1986), the alien needs to show the father was present for five years, two of which were after 14.

Enter Flores, who wanted to raise a derivative citizenship defense to an illegal reentry charge. The old law applied to him, and his father was only 16 when Flores was born, so it was impossible for his father to transmit U.S. citizenship. On this basis, the government moved to exclude any derivative citizenship defense. The district court granted that motion and overruled Flores's constitutional attack. Flores was then convicted of illegal reentry on stipulated facts.

The petition raises a number if interesting issues, such as whether a defendant has standing to raise a violation of his father's equal protection rights, and whether the intermediate scrutiny normally applied to gender discrimination claims should give way to the deference normally afforded Congress in immigration matters.

This is an extraordinarily complex area of immigration law, and if you think your client may have a derivative citizenship defense (or would have a valid defense absent the unequal residency requirements), you may want to consider consulting someone who has litigated these cases before. Also note that the Fifth Circuit has already rejected an equal protection challenge to the more-severe residency requirements for unwed fathers in United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002). Even so, in light of today's grant, the issue should be preserved in any pending cases.

If you'd like to read more about the case, SCOTUSblog has helpfully collected the Ninth Circuit's opinion, petition for certiorari, brief in opposition, and reply.

3/23/10 UPDATE: Check out some additional coverage from the AP.