Metropolitan News-Enterprise


Tuesday, June 14, 2011


Page 1


Equally Divided High Court Rejects Citizenship Law Challenge


By SHERRI M. OKAMOTO, Staff Writer


The nation’s highest court yesterday upheld the constitutionality of disparate residence requirements, based on gender, as to when foreign-born children acquire derivative citizenship from their parents.

Without the participation of Justice Elena Kagan, a one-line per curiam decision from the court indicated it was split 4-4 and therefore affirmed the Ninth U.S. Circuit Court of Appeals decision from 2008, involving a challenge brought by Ruben Flores-Villar. The affirmance by an equally divided court does not create a national precedent, so courts outside the Ninth Circuit could reach a contrary conclusion.

Kagan has recused herself from a number of cases this term, based on her involvement in those matters during her previous service as solicitor general.

Flores-Villar was born in Tijuana, Mexico in 1974. His biological father 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 grew up in San Diego.

In 1997, he was convicted of importation of marijuana, and was ordered removed a total of six times before 2005.

Flores-Villar was arrested again in 2006 and charged with being a deported alien found in the United States after deportation. He sought to defend on the grounds 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 16 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, these former sections of the Immigration and Nationality Act provided that if a 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 the child. In contrast, an out-of-wedlock child born abroad to a citizen mother had only to reside in the country for a continuous period of one year prior to birth in order to pass citizenship.

Flores-Villar contended these provisions make an impermissible classification on the basis of gender and age, but U.S. District Judge Barry T. Moskowitz of the Southern District of California was not persuaded. Moskowitz granted the government’s motion to exclude evidence of Flores-Villar’s citizenship claim and, following a bench trial on stipulated facts, found him guilty as charged.

The Ninth Circuit affirmed, with Judge Pamela Ann Rymer writing for the panel.

Rymer explained that most foreign countries confer citizenship by bloodline, not place of birth, as in the United States. Thus, a U.S. citizen mother who gives birth to an out-of-wedlock child in a foreign country that confers citizenship based on bloodline alone would have a child with no nationality at birth.

She reasoned that the disparate treatment between mothers and fathers in U.S. law was justified by the government’s substantial interest in avoiding “stateless” children born to citizen mothers, and also a substantial interest in assuring a link between an unwed citizen fathers 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 intermediate constitutional scrutiny.

Rymer also opined that a rational basis supported the statutory scheme’s disparate treatment of men over the age of 19 when they become fathers to children out of wedlock from those who were younger 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 one and 10.

Senior Judge Cynthia Holcomb Hall, since deceased, and Judge Andrew J. Kleinfeld joined Rymer in her opinion.

The case is Flores-Villar v. United States, 09-5801.


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