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Argument preview: Evaluating the INA’s citizenship-transmission requirement


Pursuant to the Immigration and Nationality Act of 1952 (as in effect at the time of petitioner’s birth in 1974), a child born outside the United States to unmarried parents – a U.S.-citizen mother and a non-citizen father – can obtain U.S. citizenship at birth if his mother was physically present in the United States for a minimum of one year before the child’s birth.  By contrast, a child born outside the United States to unmarried parents –a U.S.-citizen father and a non-citizen mother – can obtain U.S. citizenship only if the father was physically present in the United States for at least ten years, five of which must have been after the father’s fourteenth birthday.

Petitioner Ruben Flores-Villar was born in 1974 in Tijuana, Mexico.  His father – then sixteen years old – was a U.S. citizen, while his mother was a Mexican national; the two were not married.  With the consent of Flores-Villar’s mother, his father and paternal grandmother raised the child in California.  In 1985, his father formally recognized him as his son by filing a paternity acknowledgement in Mexico and by claiming him on his U.S. income taxes.

In 1997, Flores-Villar began a two-year prison sentence for importing marijuana.  After serving his sentence, he was removed from the United States, but he re-entered and was re-deported several times over the next eight years.  When he was subsequently indicted for his illegal presence in the United States, Flores-Villar sought to defend himself by claiming that he had obtained citizenship through his father.  His citizenship application was denied, however, because his father had not been present in the United States for at least five years after the father’s fourteenth birthday.  Flores-Villar also contended that the INA’s physical-presence requirement violated the Fifth Amendment because it treated unwed fathers differently from unwed mothers, who needed only to have been physically present in the United States for at least one year.  The district court rejected this claim, and Flores-Villar was sentenced to forty-two months in prison.

On appeal, the Ninth Circuit affirmed.   Relying on the Supreme Court’s 2001 decision in Nguyen v. INS (2001), in which the Court rejected an equal protection challenge to the INA’s requirement that a U.S.-citizen father (but not a U.S.-citizen mother) establish a connection to an out-of-wedlock child who is born outside the United States (by, for example, acknowledging the child’s legitimacy) but wishes to obtain citizenship.  The court of appeals explained that the government’s interests in avoiding stateless children and having a connection between the United States and the child of a U.S.-citizen father were “no less important” and “no less substantially related” than the interests at issue in Nguyen.  Moreover, while acknowledging that there was not a “perfect” fit between the statute’s objectives and the means employed to achieve them, the court deemed the fit “sufficiently persuasive in light of” Congress’s plenary power over immigration and naturalization.  Flores-Villar filed a petition for certiorari, which the Court granted on March 22.


In his brief on the merits, Flores-Villar again argues that the INA’s residency requirements denies equal protection to the foreign-born children of unwed U.S.-citizen fathers.  Under the version of the INA in effect when he was born, Flores-Villar notes, it is impossible for a U.S.-citizen father to transmit citizenship to a child born before the father’s nineteenth birthday.

Because the statute in question involves gender discrimination, and because of what he describes as “the significance of citizens’ interest in transmitting citizenship to their children,” Flores-Villar urges the Court to apply intermediate scrutiny to the residency requirement.  Moreover, Congress’s “plenary power” does not warrant a lower level of scrutiny, because the issue here – the acquisition of citizenship at birth – “is fundamentally different from the immigration or nationalization of an alien,” he argues.  And in any event, the residency requirement cannot withstand even survive rational basis review, as the government has not met its burden of demonstrating that the discriminatory requirements served a legitimate purpose – in this case, allowing the foreign-born children of an unwed U.S.-citizen parent to avoid statelessness.

Nor, Flores-Villar continues, did the Ninth Circuit properly rely on Nguyen.  He contends that the distinctions upheld by the Court in that ruling were “biologically based,” whereas the gender-based distinction in his own case – the imposition of an age-based residency requirement on fathers but not on mothers – has no basis in biology.  Thus, Flores-Villar asks the Court to extend the shorter residency requirement imposed on unwed U.S.-citizen mothers of foreign-born children to fathers as well.

In its own merits brief, the government counters that the Court should defer to Congress’s intent to reduce the number of children born stateless.  Although it agrees that the rational basis review is appropriate, the government contends that the residency requirement could not withstand intermediate scrutiny either, explaining that “there is no serious dispute that reducing the number of children born stateless is an important government objective.”

Moreover, the government contends, Flores-Villar lacks standing to bring an equal protection challenge to the residency requirement on his father’s behalf.  Because Flores-Villar’s father never asserted his own claim, and because Flores-Villar himself never suffered unequal treatment as a result of his own gender, the claim cannot be properly raised here.

Finally, the government argues that, even if the residency requirement is unconstitutional, Flores-Villar would not be entitled to have his conviction reversed on the ground that he has always been a U.S. citizen.  Instead of extending the residency requirement for unwed U.S-citizen mothers to unwed U.S.-citizen fathers, the government contends, the proper remedy for the perceived equal protection violation would be to apply the longer residency requirements currently imposed on fathers to mothers as well.

Recommended Citation: Anna Christensen, Argument preview: Evaluating the INA’s citizenship-transmission requirement, SCOTUSblog (Nov. 9, 2010, 11:20 PM),