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U.S. Supreme Court to hear fathers' rights challenge to immigration law

By Raju Chebium
CNN.com Correspondent

In this story: The government's counter arguments Background of the case The Miller case RELATED STORIES, SITES

WASHINGTON (CNN) -- The U.S. Supreme Court will hear oral arguments Tuesday in a case that seeks to strike down part of the federal citizenship law on grounds that it violates the Fifth Amendment's equal protection provisions by making it harder for U.S.-citizen fathers to get their foreign-born children naturalized.

VIDEO CNN's Charles Bierbauer reports the case and its history Play video (QuickTime, Real or Windows Media)

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At the heart of Nguyen v. INS is Section 1409 of the Immigration and Nationality Act, which deals with children born outside the United States to parents who are not married and one is a U.S. citizen.

Under the law, the Immigration and Naturalization Service almost always confers automatic citizenship to children born overseas to a U.S. citizen mother and a father of a different nationality, according to legal briefs filed with the high court.

But under the law, the INS makes U.S. citizen fathers take additional steps to prove their paternity before the child turns 18, thereby violating fathers' Fifth Amendment right of equal protection under the law, according to the brief filed by the National Organization of Women's Legal Defense and Education Fund.

Those steps include swearing under oath that the child is theirs or having a court certify paternity, and agreeing to financially support the child as long as he or she is a minor, according to NOW, which is representing Vietnam-born Tuan Anh Nguyen and his U.S.-citizen father, Joseph Boulais.

"NOW Legal Defense vigorously opposes the law. It stands as one of the few remaining statutes that contains a ... gender-based classification, and relies on outdated stereotypes concerning men's and women's parenting roles," according to a statement on the group's World Wide Web site. "As the Court has ruled for nearly 30 years, such stereotypes cannot stand under our constitutional guarantee of equal protection under the law."

The government's assumption that mothers are the primary caregivers for their children was proven wrong in this case because Nguyen's birth mother disappeared shortly after the boy was born and Boulais and his new wife, also Vietnamese, have cared for him since infancy, according to court papers.

Under Section 1409, "a father like Joseph Boulais who has supported his son from infancy may be forever barred from transmitting citizenship after his child's eighteenth birthday," the NOW brief said. However, a U.S. citizen mother, "who left her child at birth and provided no emotional or financial support whatsoever could nevertheless transmit citizenship at birth," according to the brief.

Nguyen's and Boulais' lawyers want the high court to strike down Section 1409, keeping intact the rest of the Immigration and Nationality Act, which spells out how immigrants can become citizens of this country.

The Fifth and 14th Amendments offer similar equal protection and due protection guarantees. Nguyen's lawyers invoked only the Fifth Amendment in their brief, however, because the high court, in a 1971 ruling, said children born to an American parent overseas are not entitled to an automatic 14th Amendment right to acquire U.S. citizenship.

The government's counter arguments

The Department of Justice's litigation arm, the solicitor general's office, said in its brief that Section 1409 was the result of "careful congressional consideration" in 1940, 1952 and 1986, the years when lawmakers considered the issue of citizenship for out-of-wedlock children born to a U.S. parent.

Congress established different requirements for mothers and fathers because lawmakers determined that children who lose touch with their U.S. citizen fathers "are less likely to be raised as Americans," according to the solicitor general's brief.

The government also noted that Article I gives Congress the power to decide the procedures for naturalization.

"Courts are particularly ill-suited to second-guess Congress's judgments about what classes of persons should be eligible for statutory citizenship," the government argued.

"The legislative judgments embodied in Section 1409 lie at the core of Congress's power to grant naturalized citizenship. ... Its exercise involves political decisions about who should share in the privileges, protections, and duties of citizenship, and implicates questions of national security and foreign policy," according to the Justice Department. "This Court's cases ... establish that deference is due to Congress's judgments about who should be eligible for statutory citizenship."

The government argued that the law does not violate the Fifth Amendment because "the distinction between unwed citizen fathers and unwed citizen mothers appropriately reflects important and enduring legislative concerns."

Background of the case

Nguyen was born in Saigon, Vietnam, in 1969 to Boulais, a native of Hartford, Connecticut, and a Vietnamese woman who disappeared after his birth and never played a role in raising him, according to court papers.

Boulais, a U.S. Army veteran who served in Germany and moved to Vietnam after being honorably discharged, and his raised Nguyen along with his new wife, also a Vietnamese native.

When the North Vietnamese captured Saigon in 1975, Nguyen fled with his stepmother's family and later came to the United States as a refugee.

He became a permanent resident of this country and has not returned to Vietnam since. He was raised in Texas, court papers show.

In 1992, Nguyen was convicted of two felony counts of sexual assault on a child and began serving eight years in a Texas prison.

Three years later, the INS began deportation proceedings against Nguyen, saying he had been convicted of aggravated felonies and crimes of "moral turpitude," according to the NOW brief.

In 1997, an immigration judge upheld the INS's decision. In his appeal to the Board of Immigration Appeals, Nguyen argued that he cannot be deported because he is a U.S. citizen, court papers show.

While the appeal was pending, Boulais got a DNA test that confirmed that he was father by a 99.98 percent probability, and got a court ruling confirming that his paternity. By then, however, Nguyen was 28 years old, 10 years older than the cut-off age specified in the law.

After the immigration board rejected the appeal in 1998, Nguyen turned to the federal courts. But he lost there, too.

The Fifth U.S. Circuit Court of Appeals, invoking a 1977 Supreme Court decision, rejected the Fifth Amendment argument and ruled that it did not have the jurisdiction to overturn the board of immigration appeals' order.

However, the appeals court ruled that Section 1409 was "well tailored" to "meet several important government objectives," indicating that Nguyen would have lost anyway if the court had found that it could directly review the immigration appeals board's decision.

Nguyen, now 31, finished serving his sentence earlier this year and is now being held in an INS detention center in Houston, Texas.

The Miller case

Nguyen marks the second time in two years that Section 1409 has been challenged.

In 1998, the high court refused 6-3 to overturn the law in Miller v. Albright, a case brought by the daughter of a U.S. citizen father. In that case, which also challenged the law on Fifth Amendment grounds, the father was not a party to the proceedings. The high court ruled that the daughter could not raise equal protection claims on her father's behalf, court papers show.

The court ruled in Miller that it was constitutional for the government to ensure that there is a reliable proof of a blood relationship between the father and the child.

The Millerruling, which did not decide the constitutionality of the Section 1409, suggests that the justices might strike down the section if the father is a party to the case, as he is in Nguyen, according to NOW.

Additionally, lower federal courts have ruled differently on Section 1409 since the Miller decision, highlighting the need for a definitive high court ruling, NOW said.

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