I can't believe this case was decided by the Supreme Court. In 2001.
Nguyen v. INS
Petitioner is a convicted child sex offenderand aggravated felon. I know, he's slime. But how does this make ANY sense:
-Petitioner's father is a US citizen. Petitioner's mother is a Vietnamese citizen. Petitioner was born out of wedlock, out of the US. Father took Petitioner to the US when Petitioner was 5,and Petitioner became a legal permanent resident of the US when he was 6. So, he spent pretty much his entire life here. His father raised him in the US.
-The USSC ruled that Petitiner is deportable.
That's not what makes me mad. What gets me is the USSC confirms that if it were his MOTHER who was the US citizen, and it was the FATHER who was the Vietnamese citizen--THEN, he wouldn't be deportable! USSC says this doesn't violate Equal Protection.
So let me get this straight: American men can run around and knock up girls abroad, out of wedlock. As long as they don't bring the pregnant girlfriend home with them to the US, the resultant children have less rights than if a woman does the exact same thing.
Oversimplification? Of course. I don't have time for an in-depth analysis of their opinion--I'm studying for the bar. Rights of children born out of wedlock out of the country are not tested on the bar. But here's a lovely quote:
"One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries. See Department of Defense, Selected Manpower Statistics 48, 74 (1999) (reporting that in 1969, the year in which Nguyen was born, there were 3,458,072 active duty military personnel, 39,506 of whom were female); Department of Defense, Selected Manpower Statistics 29 (1970) (noting that 1,041,094 military personnel were stationed in foreign countries in 1969); Department of Defense, Selected Manpower Statistics 49, 76 (1999) (reporting that in 1999 there were 1,385,703 active duty military personnel, 200,287 of whom were female); id., at 33 (noting that 252,763 military personnel were stationed in foreign countries in 1999)."
Um, all these statistics are supposed to make me think what? Oh yeah, that there are probably a very large number of children who were left behind in that war and who have no rights because it was the father, not the mother, who was a US citizen.
The dissent (O'Connor, Ginsburg, Souter, Breyer) brings up some very interesting points. Points I don't have time to think about anymore because I need to memorize bar exam law, and iron out this wrinkle I just put in my brain about Equal Protection.
2 comments:
Could it have something to do with proof of parentage? What I mean is, you know for sure that a child is born to a woman, but there may be doubt as to who the father is.
On a side note - my mother was born in the States but I still had to become naturalized. Some sort of loophole.
that's part of the argument. but now that DNA tests are readily available and not that expensive, I don't think it's good enough of a reason. Plus, while you can always tell at the time of birth who the mother is: what if the mother had a child, abandoned him with the father who raises the child, and 7 years later everyone's lost the birth certificate? Would the mother be in any better position to prove that she was related to the child than the father? This isn't farfetched when you consider 3rd-world countries.
Quoth the dissent:
The gravest defect in the Court's reliance on this interest, however, is the insufficiency of the fit between §1409(a)(4)'s discriminatory means and the asserted end. Section 1409(c) imposes no particular burden of proof on mothers wishing to convey citizenship to their children. By contrast, §1409(a)(1), which petitioners do not challenge before this Court, requires that "a blood relationship between the person and the father [be] established by clear and convincing evidence." Atop §1409(a)(1), §1409(a)(4) requires legitimation, an acknowledgment of paternity in writing under oath, or an adjudication of paternity before the child reaches the age of 18. It is difficult to see what §1409(a)(4) accomplishes in furtherance of "assuring that a biological parent-child relationship exists," ante, at 7, that §1409(a)(1) does not achieve on its own. The virtual certainty of a biological link that modern DNA testing affords reinforces the sufficiency of §1409(a)(1). See Miller, supra, at 484-485 (Breyer, J., dissenting).
It is also difficult to see how §1409(a)(4)'s limitation of the time allowed for obtaining proof of paternity substantially furthers the assurance of a blood relationship. Modern DNA testing, in addition to providing accuracy unmatched by other methods of establishing a biological link, essentially negates the evidentiary significance of the passage of time. Moreover, the application of §1409(a)(1)'s "clear and convincing evidence" requirement can account for any effect that the passage of time has on the quality of the evidence.
The Court criticizes petitioners' reliance on the availability and sophistication of modern DNA tests, ante, at 8, but appears to misconceive the relevance of such tests. No one argues that §1409(a)(1) mandates a DNA test. Legitimation or an adjudication of paternity, see §§1409(a)(4)(A), (C), may well satisfy the "clear and convincing" standard of §1409(a)(1). (Satisfaction of §1409(a)(4) by a written acknowledgment of paternity under oath, see §1409(a)(4)(B), would seem to do little, if anything, to advance the assurance of a blood relationship, further stretching the means-end fit in this context). Likewise, petitioners' argument does not depend on the idea that one particular method of establishing paternity is constitutionally required. Petitioners' argument rests instead on the fact that, if the goal is to obtain proof of paternity, the existence of a statutory provision governing such proof, coupled with the efficacy and availability of modern technology, is highly relevant to the sufficiency of the tailoring between §1409(a)(4)'s sex-based classification and the asserted end. Because §1409(a)(4) adds little to the work that §1409(a)(1) does on its own, it is difficult to say that §1409(a)(4) "substantially furthers" an important governmental interest. Kirchberg, 450 U. S., at 461.
The majority concedes that Congress could achieve the goal of assuring a biological parent-child relationship in a sex-neutral fashion, but then, in a surprising turn, dismisses the availability of sex-neutral alternatives as irrelevant. As the Court suggests, "Congress could have required both mothers and fathers to prove parenthood within 30 days or, for that matter, 18 years, of the child's birth." Ante, at 9 (citing Miller, supra, at 436 (opinion of Stevens, J.)). Indeed, whether one conceives the majority's asserted interest as assuring the existence of a biological parent-child relationship, ante, at 7, or as ensuring acceptable documentation of that relationship, ante, at 8, a number of sex-neutral arrangements--including the one that the majority offers--would better serve that end. As the majority seems implicitly to acknowledge at one point, ante, at 7, a mother will not always have formal legal documentation of birth because a birth certificate may not issue or may subsequently be lost. Conversely, a father's name may well appear on a birth certificate. While it is doubtless true that a mother's blood relation to a child is uniquely "verifiable from the birth itself" to those present at birth, ante, at 7, the majority has not shown that a mother's birth relation is uniquely verifiable by the INS, much less that any greater verifiability warrants a sex-based, rather than a sex-neutral, statute.
Post a Comment