Thursday, August 7, 2008
Court Upholds Gender Disparity for Derivative Citizenship
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday held that disparate residence requirements for unwed male and female citizens over the age of 14 who seek to transmit citizenship to a child born abroad to a non-citizen do not violate equal protection.
Assuming that intermediate scrutiny applied to Ruben Flores-Villar’s gender-based challenge and rational basis review applied to his age-based challenge to former sections of the Immigration and Nationality Act, a three-judge panel rejected his claim to citizenship through his father and affirmed his conviction for illegally reentering the country following deportation.
Flores-Villar was born in Tijuana, Mexico in 1974. His biological father, Ruben Trinidad Floresvillar-Sandez, was not listed on Flores-Villar’s birth certificate, but acknowledged Flores-Villar as his son by filing an acknowledgment of paternity with the Civil Registry in Mexico.
When Flores-Villar was two months old, his father and paternal grandmother brought him to the United States, and he was raised in San Diego.
He was convicted of importing marijuana and illegally entering the country in 2007 after being ordered removed a total of six times between 1998 and 2005.
After his 2006 arrest and charge for being a previously deported alien found in the United States, Flores-Villar argued that he thought he was a citizen through his father, who had attained citizenship through his mother—Flores-Villar’s paternal grandmother—a citizen by birth.
The government moved in limine to exclude evidence of derivative citizenship on the ground that it was physically impossible for Flores-Villar’s father, who was sixteen when Flores-Villar was born, to have been present in the United States for five years after his fourteenth birthday as required by 8 U.S.C. § 1401(a)(7) and 1409.
When Flores-Villar was born, the sections provided that if a United States citizen father had a child out of wedlock abroad, with a non-citizen mother, the father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child. In contrast, an out-of-wedlock child born abroad to a United States citizen mother had only to reside in the country for a continuous period of one year prior to birth in order to pass citizenship.
U.S. District Judge Barry T. Moskowitz of the Southern District of California granted the government’s motion and later found Flores-Villar guilty following a bench trial on stipulated facts.
But on appeal, Judge Pamela Ann Rymer explained that most foreign countries confer citizenship by bloodline, not place of birth, as in the United States. Thus, a United States citizen mother who gives birth to an illegitimate child in a foreign country that confers citizenship based on bloodline alone will have a child with no nationality at birth.
She reasoned that the disparate treatment between mothers and fathers was justified because the government has a substantial interest in avoiding “stateless” children born to citizen mothers, and also a substantial interest in assuring a link between an unwed citizen father and the United States.
Although “the fit is not perfect,” she wrote, “the means chosen substantially further [these] objectives.” Thus, she concluded, the sections withstood constitutional scrutiny.
Flores-Villar also contended that the statutory scheme treated men over 19 years of age differently than those under 19 insofar as it made it legally and physically impossible for United States citizen fathers under that age to confer citizenship upon their foreign-born, illegitimate children, even if they had resided in the United States for 10 years.
But Rymer opined that a rational basis supported such disparate treatment because a father who has spent at least five years of his life in the United States as a teenager would have more of a connection with the country to pass on to his child than a father who lived in the country between the ages of 1 and 10.
Judges Cynthia Holcomb Hall and Andrew J. Kleinfeld joined Rymer in her opinion.
The case is United States v. Flores-Villar, 07-50445.
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