"he's Not Your Real Dad": in United States v. Flores-villar, the Ninth Circuit Erroneously Denied Equal Protection That Would Enable a Father to Transmit United States Citizenship to His Foreign-born Child

• Publication year: 2022

45 Creighton L. Rev. 581. "HE'S NOT YOUR REAL DAD": IN UNITED STATES V. FLORES-VILLAR, THE NINTH CIRCUIT ERRONEOUSLY DENIED EQUAL PROTECTION THAT WOULD ENABLE A FATHER TO TRANSMIT UNITED STATES CITIZENSHIP TO HIS FOREIGN-BORN CHILD

"HE'S NOT YOUR REAL DAD": IN UNITED STATES V. FLORES-VILLAR, THE NINTH CIRCUIT ERRONEOUSLY DENIED EQUAL PROTECTION THAT WOULD ENABLE A FATHER TO TRANSMIT UNITED STATES CITIZENSHIP TO HIS FOREIGN-BORN CHILD.

Eric Newhouse - '13

I. INTRODUCTION

The Nationality Act of 1940(fn1) (the "1940 Act") was a joint attempt by Congress and the Franklin Roosevelt Administration to revise and compile the citizenship statutes of the United States into a unified, comprehensive code of law.(fn2) In addition to the scattered nature of U.S. nationality statutes prior to its enactment, one of the contributing factors to the development of the 1940 Act was the lack of statutory provisions concerning the nationality of inhabitants of U.S. outlying possessions.(fn3) Furthermore, the large number of foreign nationals giving birth on U.S. soil and then taking those children back to their home countries, as well as similar cases of American nationals who gave birth abroad, increased the likelihood of dual-nationality children.(fn4) Finally, citizenship status was not always clear for those born in unincorporated territories or for those born abroad to American nationals, neither of whose citizenship was governed by the Fourteenth Amendment.(fn5) The 1940 Act, most prominently section 201(g), proposed a variety of solutions to these problems.(fn6)

Section 201(g) provided that a child born abroad to mixed-citizenship parents became a citizen at birth if, inter alia, the citizen parent resided in the United States for ten years prior to the child's birth, at least five of those years being after the parent's sixteenth birthday.(fn7) This prior presence requirement to pass citizenship to a foreign-born child applied to married couples where one spouse was a U.S. citizen and the other an alien.(fn8) The Immigration and Nationality Act of 1952(fn9) (the "1952 Act") amended section 201(g) to require that five of the citizen parent's years of prior presence come after the parent's fourteenth birthday.(fn10) The 1952 Act also applied the 1940 Act's ten-year prior presence requirement to citizen parents of a nonmarital child, provided that the citizen parent legitimated the child by age twenty-one.(fn11) The 1952 Act, however, specially excepted unwed citizen mothers, such that they needed only to maintain a continuous presence in U.S. territory for one year before they could pass citizenship to their foreign-born children.(fn12)

In United States v. Flores-Villar,(fn13) the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the Southern District of California's ruling preventing Ruben Flores-Villar, born in Mexico to a U.S. citizen father and a Mexican mother, from establishing derivative citizenship through his father.(fn14) The Ninth Circuit affirmed the constitutionality of section 309 of the 1952 Act despite Flores's equal protection challenges based on his gender and his age.(fn15) The Ninth Circuit did not settle the question of whether heightened scrutiny applied to Flores's claim of gender-based discrimination by § 1409(c), or whether congressional plenary power over the immigration field mandated a lesser degree of oversight.(fn16) Applying heightened scrutiny, the Ninth Circuit declared that the prevention of statelessness and the need to forge links between unwed citizen fathers, their foreign-born children, and the United States were important interests to which the gender-based classification of § 1409(c) was a substantially related means.(fn17) While the court admitted that the fit between means and ends was not perfect, it sufficed in light of Congress's plenary power to legislate in the immigration field.(fn18)

This Note will first review the facts and holding in Flores-Villar.(fn19) Next, this Note will review the United States Supreme Court's adoption of a highly deferential standard of review for immigration statutes, due to Congress's plenary power over that field.(fn20) This Note will then review the elements of heightened scrutiny, the level of review generally applied by the Supreme Court to gender-based classifica-tions.(fn21) This Note will then examine the Supreme Court precedent cited by the Ninth Circuit in Flores-Villar.(fn22) Finally, this Note will argue that the Ninth Circuit, in Flores-Villar, improperly upheld § 1409(c) as constitutional, erroneously denying Flores the opportunity to claim derivative citizenship through his U.S. citizen father.(fn23)

II. FACTS AND HOLDING

In United States v. Flores-Villar,(fn24) the United States Court of Appeals for the Ninth Circuit concluded that additional residence requirements for unwed citizen fathers before they could pass citizenship to foreign-born children of an alien mother-requirements that did not apply to similarly situated citizen mothers-did not violate the Constitution's guarantee of equal protection.(fn25) The plaintiff, Ruben Flores-Villar, was born in Mexico in 1974.(fn26) His father, Ruben Floresvillar Sandez, was sixteen years old at the time of Flores's birth.(fn27) Flores's father and paternal grandmother (herself a U.S. citizen) brought Flores to the United States soon after his birth and raised him there.(fn28) In 1989, Sandez received a certificate of U.S. citizenship, as derived from his mother.(fn29) Flores was first arrested in 1997 for importing marijuana.(fn30) Over the next several years, the U.S. government repeatedly ordered Flores removed from the country.(fn31) In 2006 the U.S. Border Patrol arrested Flores once more, this time on charges of being an alien present in the United States after his depor-tation.(fn32) In his defense, Flores asserted his belief that he was a U.S. citizen due to his father's citizenship.(fn33) The government moved in limine to exclude any evidence of Flores's claim to citizenship on the ground that he was unable to demonstrate that his father satisfied the residency requirements of § 1401(a)(7) and could not pass citizenship to his son at birth.(fn34) In May 2007, the United States District Court for the Southern District of California granted the government's motion.(fn35)

The district court first established that for Sandez to pass citizenship to Flores, Sandez must have met the requirements in force at the time of Flores's birth, and not the less stringent requirements in effect after the statute's 1986 amendment.(fn36) Furthermore, the court rejected Flores's arguments that § 1401(a)(7) violated the Equal Protection Clause of the Fourteenth Amendment.(fn37) The district court conducted a bench trial on stipulated facts and convicted Flores, who appealed to the Ninth Circuit.(fn38) Writing for a three-judge panel, Judge Pamela Rymer affirmed the lower court ruling.(fn39) The Ninth Circuit looked to Nguyen v. Immigration and Naturalization Service(fn40) to settle questions of gender-based and age-based discrimination.(fn41) Following Nguyen, the Ninth Circuit assumed without deciding that Flores's gender-based discrimination claim merited intermediate scrutiny, and that his age-based claim merited rational basis scrutiny.(fn42)

Flores alleged gender-based discrimination by the statutory scheme's double standard for transmission of citizenship to a nonmarital child born abroad to a mixed-citizenship couple.(fn43) While § 1409(c) required an unwed citizen mother to be continuously present in the United States for only one year, § 1401(a)(7) required an unwed citizen father to be physically present in the United States for at least ten years before birth, five of these years after his fourteenth birthday, to pass citizenship.(fn44) The court acknowledged two important government interests, identified by the United States Supreme Court in Nguyen, as substantially furthered by this distinction: first, ensuring a biological relationship between the child and citizen parent, and second, providing the opportunity to forge a relationship between the citizen parent, foreign-born child, and the United States.(fn45) In addition, the Ninth Circuit accepted the prevention of statelessness as an important interest substantially furthered by the reduced prior presence requirement of § 1409(c) for citizen mothers.(fn46) By making it easier for an unwed citizen mother to pass citizenship to a child born abroad, the United States could reduce the risk of that child being born stateless in a country that did not grant citizenship by jus soli.(fn47) While the court conceded that the fit between the statute's discrimination between fathers and mothers and the government's interests was not perfect, the fit sufficed due to Congress's plenary power over immigration and citizenship.(fn48)

The Ninth Circuit then applied rational basis scrutiny to Flores's claim of age discrimination.(fn49) The court determined a rational basis for statutory discrimination existed, even though the statutory scheme made it impossible for Sandez, or any citizen father under age nineteen, to pass citizenship to a nonmarital child born abroad-even if the father had resided in the United States for ten years before birth.(fn50) Flores also alleged a violation of substantive due process rights, but the court saw most of these rights as belonging to his father...