WASHINGTON (WOMENSENEWS—The nation's highest court was asked Tuesday, January 9, to overturn one of the last remaining federal laws that makes a distinction solely on the basis of gender: citizenship provisions for foreign-born children of American citizens.
And, as in many of the equal rights cases that have been struck down by the U.S. Supreme Court, the case involved a male victim of discrimination who was represented by a women's rights advocate.
The case challenges the citizenship rules for foreign-born children with unmarried parents, one of whom is a U.S.-citizen. It potentially affects tens of thousands of children of U.S. military personnel. In fact, Nguyen vs. Immigration and Naturalization Service presents a typical scenario from the Vietnam era, but with an important twist.
Joseph Alfred Boulais, a U.S. citizen, was an engineer working in Vietnam during the war. A child, Tuan Anh Nguyen, was born as the result of his liaison with a Vietnamese woman. Boulais returned to the United States after Saigon fell in 1975, bringing his 6-year-old son with him and moving to Houston. Boulais acknowledged paternity and reared his child.
Fast forward two decades: The son, a legal resident alien, is convicted of two felonies involving sexual assault. After he served his eight-year sentence, the Immigration and Naturalization Service began deportation proceedings, claiming that he did not have the right of citizenship even though he was the child of a U.S. citizen. It argued that upon his conviction, he lost his right to remain in the country.
The reason: His citizen father didn't undertake the extra steps beyond those required of a mother.
As the law stands now, if the mother of a foreign-born, non-marital child is a U.S. citizen and if the mother had resided in the U.S. for at least a year, then her child is automatically a citizen upon birth. A citizen mother, even if she abandons her child, confers citizenship at any time during a child's life.
Fathers Must Take Extra Steps to Make Foreign-Born Children Citizens
But when a father is a foreign-born child's tie to the United States, the father must take certain steps before the child turns 18 in order to transmit citizenship: He must acknowledge paternity in court and promise to support the child until the age of 18. After the age of 18, the child then must apply for citizenship on his or her own. Boulais did not undertake these formalities, although he acknowledged paternity and supported his child.
The deportation proceedings crystallized the issues. Vietnam refused to accept the return of Nguyen and he now faces the prospect of spending the rest of his life in a U.S. deportation facility.
"The special requirements imposed on fathers, including the time limit for legitimizing or acknowledging the child, reflect the stereotype that fathers will not typically have such connections to their children," said the brief on behalf of the father and son. It added that the citizenship law, by giving the stereotypes the force of law, "operates to deny rights to fathers like Joseph Boulais who do not conform to expected sex-based social roles."
Martha F. Davis, legal director for NOW Legal Defense and Education Fund, argued that the citizenship law was unconstitutional on its face because it requires males to take extra steps to transmit their citizenship to their children. (NOW Legal Defense is the publisher of Women's Enews.)
"We are bringing this case to promote equal protection under the law," said Davis. "This statute relies on stereotypes, not real life, in assuming that only mothers are 'real' parents. The statute is outdated, wrong and unconstitutional."
Seeking a Single, Gender-Neutral Standard for Mothers, Fathers
Edwin S. Kneedler, deputy solicitor general, argued on behalf of the Immigration and Naturalization Service, emphasizing that the identity o