Citizenship Theories, Immigration and Nationality Act Section 309 & Nguyen v. Ins: How the Supreme Court Got It Wrong

• Author: Rachel Baskiri
• Position: J.D. Benjamin N. Cardozo School of Law
• Pages: 869-908

Page 869

J.D. Benjamin N. Cardozo School of Law, 2005; B.A., cum laude, 2002, SUNY Bing-hamton. I wish to thank Professor Careen Shannon and Professor Ed Stein for their time and comments on earlier drafts. Thank you so much Professor Lenni Benson for all your time, encouragement, and ideas in helping me with this topic. Thank you Molly Guptill, Amanda Hornung and Tamar Aydin, as well as all the staffers on the journal for your hard work and careful reading of of this Note. Finally, many thanks to Ellen and Jeff Baskin, and Jeremy Kaplan for putting up with me through the process of writing this Note.

Introduction

Suppose Anne was born in Vietnam to Jim, who is a Vietnamese citizen and Marie, who is a United States citizen. Jim and Marie were never married. Anne never traveled to the United States. From the time she was an infant she lived with her father and his wife in Vietnam. Anne thinks her mother returned to the United States, but neither she nor her father can be sure of her mother's whereabouts. Jim continually supported Anne while they lived in Vietnam.

Anne recently came to the United States without the proper travel documents and was placed in removal proceedings.¹ At the proceedings, she argued that she could not be deported because she was a United States citizen. This was the first time that Anne had ever stepped foot in the United States and she does not remember the last time she had contact with her mother. Nevertheless, she claimed that she acquired United States citizenship at birth because she was born to a United States citizen mother. Since Anne's mother was a United States citizen, Anne was granted citizenship in her own right.²

Suppose, on the other hand, that Tuan Anh Nguyen (Nguyen) was born in Vietnam to Hung Thi Nguyen, a Vietnamese citizen and to Joseph Boulais, a United States citizen. His mother and father were never married. From the time he was an infant, Nguyen lived with hisPage 870 father and his step-mother. Eventually, Joseph returned to the United States, and when Nguyen was six years old he came to live with his father in America. Neither Nguyen nor his father have tried to contact Nguyen's mother since Nguyen arrived in the United States and they are unaware of her whereabouts, or if she is even alive. Joseph continually supported Nguyen, first in Vietnam, and then when he arrived in the United States.

Nguyen, however, was put into removal proceedings after he was charged with a crime. Despite the fact that he had lived in the United States with his father, a United States citizen, who raised and supported him from the time he was six years old, and the fact that he had maintained his status as a lawful permanent resident, USCIS ordered Nguyen deported. In his defense, Nguyen asserted that he could not be deported because his father was a United States citizen, so he also enjoyed citizenship. The court refused to grant relief based on this argument, stating that since Nguyen's father did not comply with the requirements of section 309 of the Immigration and Nationality Act (INA)³Joseph had never formally conferred citizenship upon Nguyen.

Nguyen had been raised in the United States and supported by his father from the time he was a young child. He knew nothing of his mother and could not remember ever having set foot in Vietnam. He had no connections-familial or emotional-with Vietnam and only knew of life in the United States. Nevertheless, Nguyen was deported.

The difference between the first hypothetical and the second hypothetical, which was based on Nguyen v. Immigration & Naturalization Service,⁴demonstrates the inherent unfairness encompassed in section 309 of the INA. In this note I will argue that in Nguyen v. Immigration & Naturalization Service⁵the Supreme Court failed to protect America's understanding of citizenship. The Supreme Court, in deciding Nguyen upheld section 309(a) of the INA,⁶stating that the statutory distinction was "consistent with the equal protection guarantees embedded in the Due Process Clause of the Fifth Amendment."⁷Rather than discussing whether the Supreme Court correctly applied the standards in regard toPage 871 the equal protection guarantees found in the Due Process Clause of the Fifth Amendment,⁸I will assert that Nguyen was decided incorrectly based on our jurisprudential notions of citizenship.

In Part I, I will examine the history of citizenship in the United States; how it was originally acquired and how it has come to be understood. In Part II, I discuss two relevant cases, Miller v. Albright⁹and Nguyen v. Immigration & Naturalization Service¹⁰in which the Supreme Court upheld the constitutionality of section 309 of the INA and in doing so misunderstood the meaning of citizenship. The Court upheld this offensive statute based on faulty equal protection analysis rather than looking at what it actually means to be a United States citizen.¹¹I will argue that INA 309 undercuts our understandings of citizenship. In order to define the contours of what we commonly mean by citizenship, I will examine three prominent theories of citizenship: republicanism, communitarianism, and liberalism.¹²Under each separate and distinct theory, the Supreme Court has failed to fulfill its obligations to United States citizen fathers and their children by upholding section 309(a) of the INA and has failed to examine the meaning of citizenship in the American context. Finally, I suggest that section 309 of the INA

Amendment, which states, in part, "no person shall ... be deprived of life, liberty, and property, without due process of law. ..." U.S. Const, amend. V.Page 872 should be modified to comport with republican, communitarian and liberal values.

I Acquiring Citizenship

There is no single objective definition of citizenship to which we can commonly refer in order to resolve the different understandings of what citizenship encompasses.¹³The consensus seems to be that citizenship entails some feeling of membership and belonging.¹⁴In 1958, in Chief Justice Warren's dissent in Perez v. Brownell,¹⁵he stated that "[c]itizenship is a man's basic right for it is nothing else than the right to have rights."¹⁶Almost ten years later, in the case that overruled Perez v. Brownell, the Supreme Court wrote that cc[c]itizenship in this Nation is a part of a cooperative affair;" "[i]ts citizenry is the country and the country is its citizenry."¹⁷Professor Aleinikoff argues that "citizenship is not a right held against the state; it is a relationship with the state, or, perhaps, a relationship among persons in the state."¹⁸Professor Schuck suggests that "citizenship provides a focus of political allegiance and emotional energy on a scale capable of satisfying deep human longings for solidarity, symbolic identification, and community."¹⁹In his analy-Page 873 sis of Nguyen v. Immigration & Naturalization Service,²⁰Professor Martin explains that the "function of citizenship in the modern world means that we expect it to reflect more than formal legal status; we expect it also to reflect certain social, cultural, and affective ties."²¹

A The History of Citizenship

Understanding citizenship laws in the United States requires a historical analysis of its evolving conceptualization. Citizenship used to be understood in the form of political allegiance or loyalty to a monarch.²²When an individual was a member in a particular society and showed his allegiance to the monarch, he was entitled protection; "[protection, like allegiance, was a natural obligation, owed by the superior to the inferior, by the sovereign to the subject."²³All those who owed individual allegiances to the monarch, in turn were owed protection by the monarch.²⁴FInmedieval times, allegiance was understood in the feudal sense. This meant that personal bonds between a "man and lord were the primary ligaments of the body politic."²⁵In contrast, the modern notions of citizenship and nationality create a legal tie not between one individual and another, but between an individual and the nation-state.²⁶Page 874

This notion of loyalty transferred to the American colonies. In early colonial times, Americans valued their status as subjects, and continued to affirm their allegiance to the monarch. At the same time, however, they began to move toward a new understanding of citizenship, focusing on those ties that bind an individual to his community.²⁷As the American colonists tried to establish a republican form of government, they needed to define principles of membership that "adequately encompassed their ideals of individual liberty and community security."²⁸The new and sovereign states of the United States individually assumed control over naturalization and established their own procedures of admitting aliens to citizenship.²⁹States' naturalization policies recognized that in order to become a citizen, a person must show some connection with the receiving country or state. For example, some policies rested on notions that "time alone could insure that those imbued with 'foreign principles' had the opportunity to assimilate the habits, values and modes of thought necessary for responsible participation in a virtuous, . . . self-governing republican . . . community."³⁰Early models of naturalization and citizenship reflected individuals' relationship with the sovereign state rather than with the federal government.³¹

Even the Articles of Confederation did not give the federal government the power to confer citizenship.³²The Articles of Confederation included a contested and confusing clause, the comity clause...