Cases & Deals

Supreme Court splits 4-4 in Equal Protection challenge to derivative citizenship statute, leaving open issues on which National Immigrant Justice Center and American Immigration Lawyers Association filed amicus brief

Clients National Immigrant Justice Center, American Immigration Lawyers Association

On June 13, 2011, an equally divided United States Supreme Court affirmed the judgment in Flores-Villar v. United States by a vote of four to four, with Justice Kagan recused.

Jones Day filed a brief in the case on behalf of amici curiae the National Immigrant Justice Center (NIJC) and the American Immigration Lawyers Association (AILA) in support of the petitioner Ruben Flores-Villar. Flores-Villar challenged the constitutionality of the gender-based distinctions in the derivative citizenship statute for children born abroad and out of wedlock to a U.S.-citizen parent, 8 U.S.C. §§ 1401 and 1409. The Ninth Circuit affirmed Flores-Villar's conviction as an alien found in the United States, rejecting his claim that the stringent residency requirements for unwed fathers—but not unwed mothers—to pass U.S. citizenship to their foreign-born children at birth violate the Constitution's Equal Protection guarantee.

In the amici curiae brief, NIJC and AILA argued that if the Supreme Court were to find that the different residency requirements for unwed mothers and unwed fathers violate the Equal Protection guarantee, it can and should remedy the constitutional violation by extending the more lenient requirement for unwed mothers in § 1409(c) to cover unwed fathers and holding that Flores-Villar was a U.S. citizen at birth by virtue of his father's citizenship. Extension of the more lenient requirements for at-birth citizenship as a constitutional remedy does not encroach on Congress's power to set rules for the admission or naturalization of aliens. Instead, it more closely comports with Congress's intent in the Immigration and Naturalization Act and runs the least risk of disrupting the settled expectations of individuals who are already citizens under § 1409(c), and whose citizenship would be called into question if the Court withdrew the benefit from unwed citizen mothers. NIJC and AILA also argued that Flores-Villar had standing to challenge the gender-based distinction, both in his own right as a criminal defendant and child deprived of citizenship, and on behalf of his father.

The Supreme Court's affirmance by an equally divided court allows the Ninth Circuit's decision to stand, but it has no precedential effect. While Flores-Villar's conviction will stand, the issues of whether the differential treatment of unwed fathers and mothers in the citizenship statute violates the Equal Protection guarantee, whether the Court can afford a remedy for such a violation, and whether a child deprived of citizenship has standing to challenge the gender-based distinction remain open for decision in the future.

Ruben Flores-Villar v. United States of America, 09-5801 (U.S. Supreme Court)

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