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Mother’s Status Determines Citizenship

Supreme Court rules 5-4

By Ji Hyun Lim and Associated Press

Tuan Ahn Nguyen grew up as a “normal” hapa child in Texas. He attended American schools, had American friends and an American father. He was considered a foreign-born permanent resident of the United States.

All that changed, however, when he turned 22 — and was sentenced to two counts of sexual assault against a minor.

The U.S. Supreme Court ruled on June 11 that Nguyen was subject to deportation back to Vietnam because he had breached his right to stay in the United States by committing a federal crime.

Despite his father’s citizenship, Nguyen leave the country because his estranged Vietnamese mother is not an American citizen. By a narrow ruling of 5-4, the Court set a precedent, stating that different statuses of citizenship of parents do not follow the equal-protection clause of the U.S. Constitution.

That means even when a child is born out of wedlock, the child assumes the mother’s citizenship status.

This case, first argued on June 9 of this year, challenged one of the few gender-differentiated laws still in the books in the United States. A prior statute was contested before the Supreme Court in 1998 in Miller v. Albright. However, the Chief Justices split evenly in their decision, resulting in a hung jury. With the Nguyen case, Justice Kennedy finally cast the deciding vote that upheld the existing law.

“To fail to acknowledge even our most basic biological differences — such as the fact that a mother must be present at birth but the father need not be — risks making the guarantee of equal protection superficial,” majority opinion leader Justice Anthony Kennedy said.

Chief Justices William Rehnquist, John Paul Stevens, Antonin Scalia, and Clarence Thomas agreed with Kennedy’s ruling. The two female justices, Sandra Day O’Connor and Ruth Bader Ginsberg, along with Justices David Souter and Stephen Breyer, dissented against the opinion.

Martha Davis, vice president and Legal Director of the N.O.W. Legal Defense Fund, defended Nguyen and his father Joseph Boulais. Davis argues that there should exist no deferential treatment for citizenship because the father had played a major role in the child’s life, while the mother had not.

According to Davis, Nguyen’s father took custody of his girlfriend’s abandoned child and raised him as a single parent. The 6-year-old child could have become a citizen prior to his becoming 18; however, Boulais did not file for his son’s citizenship. She argues that the law amounted to “sex-based stereotyping” and unlawful discrimination against men.

“It was at that point that we raised the fact that he should be considered a citizen because if his father were a mother, he would automatically be a citizen,” Davis says.

Davis points out, “It is particularly ironic that just when conservatives are touting responsible fatherhood, the Supreme Court majority denies rights to a father who maintained a strong relationship with his child throughout his life… Joseph Boulais is the type of father that our society should be rewarding. Instead, the Supreme Court’s decision protects irresponsible fathers at the expense of Joseph Boulais,” Davis says.

Bill Strassberger, INS officer of public relations, explains that immigration laws have become more stringent within the past 12 years. Specifically, in 1996 Congress lowered the severity of crime that violates immigration law and allows for deportation.

“The general rule of thumb is that if you receive a sentence of one year or greater for criminal violence, you can be removed,” Strassberger said. “It was also added to the books that rape and child molestation were removable offenses regardless of the sentences someone receives.”

Nguyen, who has served time for the two counts of felony against a minor, is now subject to deportation. Currently, Nguyen is being detained because the INS is in discussion with Vietnam about the repatriation of internationals. Nguyen, facing at least a 20-year ban from the United States, will not be eligible to obtain a visa because of his “criminal alien” status. Strassberger said that admission is granted on “very narrow reasons” and Nguyen’s return is unlikely.

Said Strassberger: “We were enforcing the law as it was written. The Supreme Court … has made its decision. I would expect that [Nguyen] will be detained until he can be removed.”