Petition for Writ of Certiorari — Tuan Anh Nguyen v. INS

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No. (|) Sorene Court, 0.8,

FILED

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wie 99207 1 JUN 2 6 200

SUPREME COURT oF THE UNITED STATES

TUAN AHN NGUYEN AND JOSEPH BOULAIS,

Petitioners,

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

On Petition For a Writ of Certiorari to The

United States Court of Appeals for the Fifth

Circuit

PETITION FOR A WRIT OF CERTIORARI

NANCY A. FALGOUT

Counsel of Record

3303 Louisiana Street,

Suite 230

Houston, Texas 77006

(713) 520-1618

MARTHA F. DAVIS

YOLANDA S. Wu

MARCELLENE E. HEARN

NOW LEGAL DEFENSE AND

EDUCATION FUND

395 Hudson Street

New York, NY 10014

(212) 925-6635

ce

ae

QUESTION PRESENTED

Whether the distinction in 8 U.S.C. § 1409 between out-of-

wedlock children of United States citizen mothers and out-of-

wedlock children of United States citizen fathers is a violation

of the Fifth Amendment to the United States Constitution?

LIST OF PARTIES

The parties to the proceeding below were the

Petitioners Tuan Anh Nguyen and Joseph Boulais, and the

Respondent Immigration and Naturalization Service.

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TABLE OF CONTENTS

Page

I cece i

EO ii

a v

ET l

STATEMENT OF JURISDICTION ...0.0.........ccceeseeseeseeseesees 2

CONSTITUTIONAL AND STATUTORY

ncn ncnccccceccssencosenees 2

STATEMENT OF THE CASE.........cccccccccscccccsccccceces 5

A. Factual Background...................... Sepucens 5

B. IT iccntcenncsseeccoosooenseeons 6

REASONS FOR GRANTING THE PETITION............ 10

1. THE COURT SHOULD RESOLVE THE

CONFLICT IN THE CIRCUITS

CONCERNING THE

CONSTITUTIONALITY OF § 1409 00000000... 10

Il. THIS CASE IS AN APPROPRIATE

VEHICLE FOR DETERMINING THE

CONSTITUTIONALITY OF § 1409.................. 11

Ill. |THECOURT SHOULD GRANT

CERTIORARI TO ADDRESS THE

IMPORTANT QUESTION OF THE

CONSTITUTIONALITY OF § 1409............. 14

CITE IIIA... cccccccccccccccccccccccccccccccoscsescosscosesses 17

APPENDIX A (court of appeals’ opinion,

Agsil 17, 2000) ........c.ccccccccccorscccsccsccccscsescrsescssonees la

APPENDIX B (the Board of Immigration

Appeals’ denial of the motion for reconsideration)......... l4a

APPENDIX C (the Board of Immigration

Appeals’ Order)..........c.ccccccsesececerereresesereeeesesses sens 17a

APPENDIX D (deportation order)................sc0eeeeeeees 20a

iv

TABLE OF AUTHORITIES

CASES

Page

Breyer v. Meissner, No. 98-1842, 2000 U.S.

App. LEXIS 12453 (3d Cir., June 6,

isa cssineseiseeriseenenesnnndiaanseinnionsinemeneneessnanentans 11,15

Califano v. Goldfarb, 430 U.S. 199 (1977)............. 15

Fiallo v. Bell, 430 U.S. 787 (1977) ......ccccccccecceeeeeeeees 9

Lake v. Reno, No. 99-4125 (2d Cir. argued

SES Sieg WEE ctnstrcrcsntesnansitaiigsinbitienataniteennemnseentes 14

Lujan v. Defenders of Wildlife, 504 U.S. 555

(IIIT setstestiesnsintinnsnainememnasnnseideanidinennemaitmeaiimeremnnaes 12

Miller v. Albright, 523 U.S. 420 (1998)........... passim

Mississippi University for Women v. Hogan,

Ge CI ED crcrennennnereneniinenemnnens 15

Nguyen v. INS, 208 F.3d 528 (Sth Cir. 2000)... passim

Rainey v. Chever, 527 U.S. 1044 (1999).............002. 15

Terrell v. INS, 157 F.3d 806 (10th Cir. 1998)......... 14

United States v. Ahumada-Aguilar, 189 F.3d

1121 (9th Cir, 1999) 0.00... cccceeseees 4, 10, 11, 14, 16

United States v. Virginia, 518 U.S. 515

GRID casstecessertemeememmnnnmmennemeneenenie 9, 15, 16

Weinberger v. Weisenfeld, 420 U.S. 636

UU sterntnieiersentnitnsinienecicnninmnineastensstetmennen 15

STATUTES

a nnn 2

I aiid ial 7

OU I a niisiindiiiliniigl ieee passim

Illegal Immigration Reform and Immigrant

Responsibility Act ("IIRIRA"), Pub. L.

104-208, 110 Stat. 3009, § 309(c)(I)(4) ............+. 7

MISCELLANEOUS

Amicus Brief of the ACLU, et al., Miller v.

Albright, LEXIS 1996 U.S. Briefs 1060

(1997)(NO. 96-1060) .........cccccseereeeeeeeneeenees 15, 16

Petition for certiorari, United States v.

Ahumada-Aguilar,

189 F.3d 1121 (9th Cir.), petition

for cert. filed, (U.S. May 22, 2000)

OO 8 4,5, 10, 11, 12, 13

Cornelia T.L. Pillard & T. Alexander

Aleinikoff, Skeptical Scrutiny of Plenary

Power: Judicial and Executive Branch

Decision Making in Miller v. Albright,

1998 Sup. Ct. Rev. 1......ccccccceececececeeeeee LS, 16

Richard G. Wood, When a Majority

Loses on the Merits: Miller v. Albright

and the Problem of Splintered Judgments,

29 Seton Hall L. Rev. 816 (1998)................ 15

No.

IN THE

SUPREME COURT OF THE UNITED STATES

TUAN ANH NGUYEN;

JOSEPH ALFRED BOULAIS,

Petitioners,

v.

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners Tuan Anh Nguyen and Joseph Boulais

respectfully petition for writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth

Circuit, entered in the above-entitled proceeding on April 17,

2000.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

208 F.3d 528 (Sth Cir. 2000) and is reproduced in the

Appendix filed herewith. App. at la-13a. The opinion of

the Board of Immigration Appeals on reconsideration is

unreported and is reproduced at App. at 14a-16a. The initial

opinion of the Board of Immigration Appeals is unreported

and is reproduced at App. at 17a-2la. The deportation order

of the Immigration Judge is unreported and is reproduced at

App. at 20a-21a.

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on April

17, 2000. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. The Fifth Amendment to the United States

Constitution provides in pertinent part:

No person shall be * * * deprived of life,

liberty, or property, without due process of

law.

2. Section 309 of the Immigration and Nationality Act

(INA), ch. 477, 66 Stat. 238 (1952), as amended, 8 U.S.C.

1409, provides in pertinent part:

Children born out of wedlock.

(a) The provisions of paragraphs (c), (d), (e),

and (g) of section 301 (8 U.S.C. 1401), and of

paragraph (2) of section 308 (8 U.S.C. 1408), shall

apply as of the date of birth to a person born out of

wedlock if --

(1) a blood relationship between the

person and the father is established by clear

and convincing evidence,

2

(2) the father had the nationality of the

United States at the time of the person's birth,

(3) the father (unless deceased) has

agreed in writing to provide financial support

for the person until the person reaches the age

of 18 years, and

(4) while the person is under the age

of 18 years'--

(A) the person is legitimated

under the law of the person's residence

or domicile,

(B) the father acknowledges

paternity of the person in writing

under oath, or

(C) the paternity of the person is

established by adjudication of a competent

court.

(c) Notwithstanding the provision of subsection (a) of

this section, a person born . . . . outside of the United States

and out of wedlock shall be held to have acquired at birth the

' Before 1986, this section required paternity to be “established

by legitimation” before the child’s twenty-first birthday. Nguyen belongs

to a class of children who may elect whether to have the “old” or “new” §

1409 govern their cases. See note following 8 U.S.C. § 1409 (effective

date of 1986 Amendment) (quoting § 23(e), Pub. L. 100-525, § 8(r), 102

Stat. 2619). Because no formal legitimation or recognition took place

until after his twenty-first birthday, Nguyen is unable to comply with

either requirement. As such, it is irrelevant which version of the law he

elects to follow.

3

nationality status of his mother, if the mother had the

nationality of the United States at the time of such person’s

birth, and if the mother had previously been physically

present in the United States or one of its outlying possessions

for a continuous period of one year.

INTRODUCTION

The issue in this case is whether a federal statute, 8

U.S.C. § 1409, violates the equal protection guarantee of the

Fifth Amendment by imposing different standards on citizen

fathers than on citizen mothers for conferring citizenship on

their foreign-born out-of-wedlock children. In Miller v.

Albright, 523 U.S. 420 (1998), the Court granted certiorari

to resolve that question but failed to de so because the citizen

father was not a party to the proceedings before this Court.

The Ninth and Fifth Circuits are now divided on the

constitutionality of § 1409. See United States v. Ahumada-

Aguilar, 189 F.3d 1121 (9th Cir. 1999), petition for cert.

filed (U.S. May 22, 2000) (No. 99-1872); Nguyen v. INS, 208

F.3d 528 (Sth Cir. 2000). The Solicitor General has asked

this Court to review the judgment of the Ninth Circuit

declaring the statute unconstitutional, and petitioners in the

instant case seek review of the Fifth Circuit's ruling

upholding the statute. For the reasons stated below,

certiorari is warranted to resolve this important and

recurring dispute over the constitutionality of a federal

statute governing citizenship.

The instant case is the appropriate vehicle for

resolving the constitutionality of § 1409. Unlike Miller, both

the citizen father and his child are parties to this proceeding.

Therefore, the standing question that prevented a definitive

merits ruling in Miller is not present here. In contrast,

because only the child is before the Court in Ahumada-

Aguilar, that case may raise the same question of standing

4

that divided the Miller Court. Indeed, the Government's

principal argument in its Ahumada-Aguilar certiorari

petition is that the Court should not reach the

constitutionality of § 1409 in that case because the child

lacks standing to assert his father's equal protection claim.

Accordingly, if the Court determines that the equal

protection question warrants plenary review, the instant case

is the appropriate vehicle because it insures that the

constitutional question will be squarely presented.

STATEMENT OF THE CASE

A. Factual Background

Petitioners Tuan Anh Nguyen and his father Joseph

Boulais seek review of an order of the Fifth Circuit Court of

Appeals which held that 8 U.S.C. § 1409, which imposes

more restrictive requirements for conferring citizenship by

citizen fathers than by citizen mothers, does not contravene

the equal protection component of the Fifth Amendment.

Tuan Anh Nguyen was born in Saigon, Vietnam on

September 11, 1969, the natural son of Joseph Alfred

Boulais, an American citizen. Boulais never married

Nguyen’s mother, a Vietnamese national who abandoned

Nguyen soon after his birth. Boulais stayed in Vietnam after

his honorable discharge from the military and eventually

married another Vietnamese woman who helped him raise

Nguyen. When the government of Vietnam fell to

communist forces in April 1975, Boulais and his wife were

on a trip out of the country. Boulais and his wife returned

immediately to the United States. | Nguyen’s step-

grandmother fled with Nguyen on an American ship

carrying refugees out of Saigon, and Nguyen was paroled

into the United States as a refugee. Nguyen became a

5

lawful permanent resident of this country and was cared for

and raised throughout his childhood by Boulais and his wife.

R. at 33.

Nguyen’s natural mother never made any attempt to

obtain custody and never communicated with Nguyen or

Boulais after she abandoned the infant Nguyen. Boulais

raised his son, supported him financially, and provided him

with a home. Boulais never formally legitimated Nguyen.

Id.

B. Proceedings Below

In 162, Nguyen was convicted of sexual assault and

has served his sentence for that offense. R. at 151-56. In

1995, he was placed in deportation proceedings by the

Immigration and Naturalization Service. Id. at 183-87. On

January 30, 1997, he was ordered deported by an

immigration judge. App. at 20a. His appeal to the Board of

Immigration Appeals (“BIA”) was dismissed on June 2,

1998. Id. at 17a (“BIA ruling”). Nguyen is now detained by

the Immigration and Naturalization Service, subject to

deportation to Vietnam.

Prior to the BIA ruling, on February 3, 1998, Boulais

obtained an Order of Parentage from a Texas District Court,

declaring him to be the father of Nguyen and holding that a

parent-child relationship exists between the father and the

child for all purposes. R. at 26-29. DNA testing confirmed

to a 99.98% degree of certainty that Boulais is Nguyen’s

biological father. Jd. at 23-24. That evidence was presented

to the BIA but apparently was not taken into account when

? Certified Administrative Record submitted to the court of appeals by

the Immigration and Naturalization Services on August 5, 1998

{hereinafter R.].

6

the BIA dismissed Nguyen’s appeal. Nguyen rnoved for

reconsideration, in part, to ask the BIA to consider that

evidence. The BIA denied the motion for reconsideration.

App. at 16a.

On June 30, 1998, Nguyen and Boulais timely filed a

petition for review of the BIA ruling with the Fifth Circuit

Court of Appeals. Nguyen and Boulais filed their petition

for review of the BIA ruling pursuant to 8 U.S.C. § 1105a(5)

(1994), which confers jurisdiction on the courts of appeals to

hear appeals of deportation orders based on nonfrivolous

claims to United States citizenship.’ They argued that §

1409 violates the Fifth Amendment of the United States

Constitution, which guarantees equal protection of the law,

because the statute imposes different requirements on citizen

fathers and citizen mothers for conferring citizenship on their

foreign-born out-of-wedlock children.

On July 2, 1998, Nguyen and Boulais also jointly

filed an action in the District Court for the Southern District

of Texas seeking review of the BIA ruling and requesting

declaratory relief that Nguyen has been a United States

citizen since birth.‘

On April 17, 2000, the Fifth Circuit first held that the

governing jurisdictional statute conferred jurisdiction to

* See 8 U.S.C. § 1105a(a)(5)(19994). The petition for review is

governed by former 8 U.S.C. § 1105Sa, as amended by the “transitional”

judicial review rules enacted by ITRIRA, which apply to deportation

proceedings initiated before April 1, 1997. See Illegal Immigration

Reform and Immigrant Responsibility Act (“ITIRIRA”), Pub. L. 104-208,

110 Stat. 3009, § 309(c)(1)(4).

* The District Court has held that action in abeyance

pending the outcome in the Court of Appeals and action on this petition.

7

determine the citizenship claim. App. at 6a. On the

citizenship claim, the court found that, because a Texas court

had entered an “Order of Parentage” establishing Boulais to

be Nguyen’s biological father, no genuine issue of material

fact existed and there was therefore no need to remand the

case to the District Court for any factual determination. /d.

Turning to the equal protection argument, the Court

of Appeals reviewed this Court's fractured decision in Miller

v. Albright, 523 U.S. 420 (1998), which generated five

separate opinions. In Miller, a six-Justice majority affirmed

the denial of the petitioner's claim to citizenship. Two of

those Justices concurred in the result only because, in their

view, the petitioner lacked third-party standing to raise the

equal protection rights of her father (who was not a party to

the case before this Court). Thus, heightened scrutiny did

not apply. 523 U.S. at 451 (O’Connor, J., concurring in the

judgment). Solely on that limited basis, Justices O'Connor

and Kennedy joined the result reached by Justice Stevens

and Chief Justice Rehnquist, who concluded that the statute

survived heightened scrutiny, id. at 423, and Justices Scalia

and Thomas, who concluded in their concurrence that the

Court lacked authority to recognize the petitioner as a

citizen, id. at 453.

Significantly, the opinion of Justice O’Connor

(joined by Justice Kennedy) also stated that “I do not share

Justice Stevens’ assessment that the provision withstands

heightened scrutiny .... It is unlikely . . . that any gender

classifications based on stereotypes can survive heightened

scrutiny[.]” Jd. at 451-52 (O’Connor, J., concurring in the

judgment). The three dissenting Justices -- Justices Breyer,

Souter, and Ginsburg -- likewise concluded that § 1409 does

not survive heightened scrutiny because the discriminatory

burdens placed on fathers “lack the ‘exceedingly persuasive’

support that the Constitution requires.” Jd. at 472 (Breyer, J.,

dissenting) (quoting United States v. Virginia, 518 U.S. 515,

530 (1996)). Therefore, as Justice Breyer (with the

concurrences of Justices Souter and Ginsburg) recognized,

“a Court majority does not share” the “assessment that the

provision withstands heightened scrutiny.” /d. at 476

(quotation omitted); see also id. at 460 (Ginsburg, J.,

dissenting) (recognizing that a “solid majority [of the Court]

adheres to [the] vital understanding” that sex-based

classifications based on stereotypes are unconstitutional).

Faced with these fractured opinions, the Fifth Circuit

in this case first held that heightened scrutiny was the

appropriate standard of review, rejecting the Government's

argument that the lesser standard set forth in Fiallo v. Bell,

430 U.S. 787 (1977), should apply. App. at lla. The Fifth

Circuit found that Boulais was a proper party to challenge

the constitutionality of § 1409 and that Boulais, unlike the

father in Miller, “ha[d) made every effort to represent his

Own interests in the present suit.” /d. at 9a-10a.

The court then applied Miller in addressing the

constitutionality of § 1409. Here, however, the court

followed only the reasoning in the opinion of Justice

Stevens. Addressing the argument that § 1409 is

unconstitutional because it relies on outmoded stereotypes

about fathers and mothers, the court noted that Justice

Stevens’ opinion identified several important governmental

objectives, including the need to ensure reliable proof of

paternity, encourage healthy parent-child relationships and

foster ties between a foreign-born child and the United

States. App. at 8a, 12a (citing Miller, 523 U.S. 437-38

(Stevens, J.)). The court also agreed with Justice Stevens

that the statute is narrowly tailored to meet these objectives.

Having found § 1409 to be constitutional under

Justice Stevens’ opinion in Miller, notwithstanding the stated

9

views of a majority of the Court, the Fifth Circuit concluded

that Petitioners failed to meet the requirements of that

provision, thus rendering Nguyen an alien. Because it found

Nguyen to be an alien who has been convicted of an

aggravated felony, the court concluded that it lacked

jurisdiction and granted the Government’s motion to dismiss

the petition for review. App. at 13a.

REASONS FOR GRANTING THE PETITION

I. THE COURT SHOULD RESOLVE THE

CONFLICT IN THE CIRCUITS CONCERNING

THE CONSTITUTIONALITY OF § 1409.

Review by this Court is necessary to resolve a

conflict among the circuits on the constitutionality of 8

U.S.C. § 1409, a federal statute governing the conferral of

United States citizenship. The court of appeals upheld the

relevant provisions of 8 U.S.C. § 1409, based on Justice

Stevens’ opinion in Miller (even though that opinion was

joined only by the Chief Justice). See, e.g., App. at 1 la-13a.

In United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th

Cir. 1999), the Ninth Circuit reached the opposite result and

struck down the relevant portions of § 1409.° After

analyzing the various decisions in Miller, the Ninth Circuit

held §1409 to be unconstitutional in light of its

understanding that “a majority of the U.S. Supreme Court

has effectively so declared,” 189 F.3d at 1122, as well as its

own independent judgment that the “outdated stereotype”

> The Government has filed a petition for certiorari in

Ahumada-Aguilar, citing this split between the Fifth and Ninth Circuits

as an important factor weighing in favor of this Court’s consideration of

the constitutionality of § 1409. See Petition for Certiorari at 20-22,

United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir.), petition for

cert. filed, (U.S. May 22, 2000) (No. 99-1872) [hereinafter Ahumada-

Aguilar Petition].

10

embodied in the statute, “relies on the generalization that

mothers are more likely to have close ties to and care for

their children than are fathers,” and cannot withstand

heightened scrutiny. /d. at 1126-27.

The conflict could not be more clear. The Fifth and

Ninth Circuits have adopted diametrically opposed views on

the constitutionality of § 1409. As a result, the nation’s laws

governing conferral of citizenship at birth lack uniformity

and depend upon the place of a person’s residence. If

Nguyen had resided in a state within the Ninth Circuit's

jurisdiction, he would have been accorded citizenship under

the decision in Ahumada-Aguilar. The existence of different

citizenship criteria in the Fifth and Ninth Circuits creates

confusion in administration of the law in those circuits as

well as other jurisdictions. Clearly, citizenship laws should

be uniform across the nation. This intolerable situation

necessitates this Court’s intervention.

fl. THIS CASE IS AN APPROPRIATE

VEHICLE FOR DETERMINING THE

CONSTITUTIONALITY OF § 1409.

In Miller, the Court granted certiorari to resolve the

constitutionality of § 1409. 523 U.S. 420, 428 (1998).

However, the Court failed to render a definitive decision

because the father was not a party to the proceeding in this

Court and because two Justices found that the petitioner in

Miller lacked standing to raise the equal protection claim of

the citizen father. As a result, Miller has not provided clear

guidance for the lower courts. Compare App. at 9a with

Ahumada-Aguilar, 189 F.3d at 1125-26. See also Breyer v.

Meissner, No. 98-1842, 2000 U.S. App. LEXIS 12453 at

*20-21 (3d Cir., June 6, 2000) (striking down gender-based

classifications in an analogous immigration law provision,

while noting that “the precedential value of Miller is

11

unclear”). As explained below, the Court should grant

certiorari in the present case because here -- unlike Miller

and Ahumada-Aguilar — both the father and the child are

parties to this action.

Clearly, the confusion engendered by Miller has

arisen because the question of standing prevented th: Court

from reaching a majority holding on the merits. ‘Ye the

Government’s petition for certiorari currently pending in

Ahumada-Aguilar vigorously asserts that the merits are also

beyond the Court’s reach in that case. According to the

Government, because the citizen father in that case is

deceased and had no prior contact with the child who now

asserts the father’s constitutional rights, no party to the suit

has standing to raise the question of § 1409's

constitutionality. Ahumada-Aguilar Petition, at 10-15. The

Government’s analysis demonstrates that Ahumada-Aguilar

is not the proper vehicle for resolving the constitutionality of

§ 1409 since, the Government asserts, standing issues would

once again frustrate this Court from issuing a definitive

ruling on the merits. Indeed, in its petition in Ahumada-

Aguilar, the Government does not even ask the Court, in the

first instance, to hear the case on the merits; instead, it seeks

a summary reversal on the threshold question of standing.

Id. at 16.

In this case, by contrast, both the citizen father and

the child are before the Court, vigorously defending their

rights. Here, the Court need not speculate concerning the

desires of a deceased father or a father who is not a party to

the action. Further, there can be no question that a citizen

father has standing to raise his own equal protection rights in

a challenge to § 1409. See Miller, 523 U.S. at 447-48

(O’Connor, J., concurring in judgment) (characterizing the

Government’s argument that the citizen father lacked

standing as “misguided”); accord Lujan v. Defenders of

12

Wildlife, 504 U.S. 555, 560-61 (1992) (holding that standing

is proper where a party has suffered an “injury in fact”). In

short, the question of standing poses no impediment to

consideration of the constitutional question presented.°

Even in the unlikely event the Court were to conclude

that Boulais is not a proper party to this case, Nguyen would

have third-party standing to raise his father’s rights under the

standards applied by all members of the Court in Miller,

including Justice O’Connor’s concurrence. If Boulais is

prevented from protecting his interests in this case, the

requisite “hindrance” that two Justices found lacking in

Miller would exist to confer third-party standing on his son.

Unlike the father in Miller, who failed to appeal his early

dismissal from that case, Boulais continues to vigorously

assert his own rights. According third-party standing would

ensure that Boulais’ constitutional rights are considered in

the context of this proceeding, the outcome of which will

have a significant, if not preclusive, impact on Boulais’

interests. Moreover, this case easily meets the additional

requirement for third-party standing that there be a “close

relationship” between Nguyen and his father, given that

Boulais raised his son from infancy following the mother’s

abandonment. In Ahumada-Aguilar, the Government

challenges the deceased father’s standing on the ground that

respondent's “only relationship with his father was genetic,”

and there is no indication that the father would have wished

to pursue his own rights. Ahumada-Aguilar Petition, at 14.

Whatever the validity of that contention, no such obstacle to

considering the merits exists in this case.

* The Government objected below to Boulais’ participation in

this action, but the court of appeals correctly rejected the Government’ s

contention out of hand. App. at 10a, n.6 (noting that the challenged

statute “directly implicates a father’s rights to confer citizenship on his

children”).

13

This Court is now faced with petitions for certiorari

in two cases presenting conflicting views of the underlying

constitutional question in Miller. Given the Court’s scarce

resources, the confusion arising from the absence of a

majority holding in Miller, and the absence of any obstacles

to consideration of the merits here, this case is plainly the

appropriate vehicle for resolving that question. Accordingly,

the Court should grant certiorari in this case, and hold the

petition in Ahumada-Aguilar for subsequent disposition

following a decision on the merits in this case.

il. THE COURT SHOULD GRANT

CERTIORARI TO ADDRESS THE

IMPORTANT QUESTION OF THE

CONSTITUTIONALITY OF § 1409.

The question presented in this case -- the

constitutionality of § 1409 -- is no less important now than it

was when the Court granted certiorari to consider it in

Miller. To the contrary, developments subsequent to Miller

only underscore the need for the Court to more clearly

address this issue.

First, the issue of § 1409’s constitutionality is a

recurring one. In the short time since Miller, at least four

cases raising this issue have already made their way to the

courts of appeal: Nguyen; Ahumada-Aguilar, Terrell v. INS,

157 F.3d 806 (10th Cir. 1998); and Lake v. Reno, No. 99-

4125 (2d Cir. argued Mar. 31, 2000).

Second, additional guidance on this issue is clearly

warranted. Of the two courts of appeals cases reaching the

merits of § 1409’s constitutionality since Miller, Ahumada-

Aguilar struck down the relevant portions of the statute,

while the Nguyen court upheld those provisions. Moreover,

in applying strict scrutiny to strike down an analogous

14

gender-based immigration law applicable to foreign-born

children of United States citizens born prior to 1934, the

Third Circuit Court of Appeals specifically noted the lack of

clear guidance from this Court. Breyer v. Meissner, No. 98-

1842, 2000 U.S. App. LEXIS 12453, at * 21 (3d Cir., June 6,

2000). Indeed, several members of this Court have

acknowledged that, “the fractured decision in Miller may

demonstrate the need for additional guidance as to the

constitutionality of laws differentiating between fathers and

mothers of out-of-wedlock children.” See e.g., Rainey v.

Chever, 527 U.S. 1044, 1047 (1999), denying cert. to 510

S.E.2d 823 (Ga. 1999) (Thomas, J. dissenting). See also

Richard G. Wood, When a Majority Loses on the Merits:

Miller v. Albright and the Problem of Splintered Judgments,

29 Seton Hall L. Rev. 816 (1998).

Finally, the question of § 1409’s constitutionality

presents a substantial question concerning laws based on

gender stereotypes. In this regard, the Fifth Circuit’s failure

to follow the views of a majority of the Justices in Miller is

particularly troubling. This Court has repeatedly made clear

that sex-based stereotyping is an impermissible form of

gender discrimination. See United States v. Virginia, 518

U.S. 515, 541-46 (1996); Mississippi Univ. for Women v.

Hogan, 458 U.S. 718, 725 (1982); Califano v. Goldfarb, 430

U.S. 199, 211 (1977) (plurality opinion); Weinberger v.

Weisenfeld, 420 U.S. 636, 645 (1975). As noted by Justice

O’Connor in Miller, “it is unlikely” that “gender

classifications based on stereotypes can survive heightened

scrutiny.” 523 U.S. at 452.’

” A majority of this Court cited heightened scrutiny as the

appropriate standard of review in Miller. 523 U.S. 440 (Stevens, J.); id.

at 478 (Breyer, J., dissenting). This issue is more fully addressed in

Amicus Brief of the ACLU, et al., Miller v. Albright, LEXIS 1996 U.S.

Briefs 1060 (1997)(No. 96-1060). See also Cornelia T.L. Pillard & T.

Alexander Aleinikoff, Skeptical Scrutiny of Plenary Power: Judicial and

15

The stereotypes on which § 1409 is based are

patently clear. As the Ninth Circuit found in Ahumada-

Aguilar, “{b]y requiring a U.S. citizen father to agree in

writing that he will provide financial support to the child

until the child reaches the age of 18, [§ 1409] (a)(3) presumes

that a father will not care for and support his child unless

required to do so.” 189 F.3d at 1126-27.

Similarly, as Justice Breyer noted in Miller, §

1409(a)(4) assumes that a paternity establishment

requirement is needed to “mak[{e] certain the father knows of

the child’s existence.” 523 U.S. at 485 (Breyer, J.,

dissenting). However, as Justice Breyer points out (and as is

illustrated in this case), “[a] father with strong ties to the

child may, simply by lack of knowledge, fail to comply with

the statute’s formal requirements,” while “[a] father with

weak ties might readily comply.” /d. at 485-86.

In United States v. Virginia, this Court reaffirmed in

the strongest possible terms that gender-based classifications

will pass muster under heightened scrutiny only if the

government affirmatively advances an “exceedingly

persuasive justification.” 518 U.S. at 531, 555. The

justifications offered by the Government, as set out in Miller

and recited in the lower court opinion, are insufficient to

support this suspect classification. While the Government

argues that the requirements of § 1409(a) are essential to

administration of citizenship laws, the facts of this case, in

which Nguyen has a close bond with his father and no more

than a genetic tie to his natural mother, underscore that the

criteria are simply based on sex stereotypes relating to men’s

and women’s parenting roles. See Amicus Brief of the

Executive Branch Decision Making in Miller v. Albright, 1998 Sup. Ct.

Rev. 1, 18-32.

16

ACLU at 6-12, Miller (No. 96-1060). Review by this Court

is necessary to clarify that sex-based stereotypes have no

place in our nation’s laws, and that such discriminatory

stereotypes may not be used to deny the rights of citizens.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

NANCY A. FALGOUT*

3303 Louisiana Street

Suite 230

Houston, Texas 77006

(713) 520-1618

MARTHA F. DAVIS

YOLANDA S. WU

MARCELLENE E. HEARN

NOW LEGAL DEFENSE AND

EDUCATION FUND

395 Hudson Street

New York, NY 10014

(212) 925-6635

June 26, 2000 * Counsel of Record

17

- APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60418

TUAN ANH NGUYEN; JOSEPH

ALFRED BOULAIS,

Petitioners,

versus

IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

(Decided: April 17, 2000}

OPINION

Before; POLITZ and STEWART, Circuit Judges, and

LITTLE, * District Judge.

* District Judge of the Western District of Louisiana, sitting by

designation.

la

CARL E. STEWART, Circuit Judge:

Tuan Anh Nguyen ("Nguyen") and Joseph Alfred

Boulais ("Boulais") appeal the Board of Immigration

Appeals ("BIA") order of deportation entered against

Nguyen. For the following reasons we grant the Immigration

and Naturalization Service's motion to dismiss the appeal for

lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Nguyen was born September 11, 1969 in Vietnam. His

mother is a Vietnamese citizen. The co-petitioner, Boulais, is

Nguyen's natural father.’ Nguyen's mother abandoned him at

birth. In June 1975, Nguyen was brought to the United States

as a refugee becoming a lawful permanent resident pursuant

to the Indochinese Refugee Act. Nguyen settled in Texas

where he was raised by Boulais. Nguyen never had any

subsequent contact with his natural mother.

On August 28, 1992, Nguyen plead guilty in Texas state

court to two felony charges of sexual assault on a child. He

was sentenced to eight years in prison for each crime. While

confined in state prison in Huntsville, Texas, Nguyen was

interviewed by an INS agent. He told the agent he was a

native and citizen of Vietnam as well as the circumstances

surrounding his entry in the United States. Based on this

information, the INS began deportation proceedings against

Nguyen on April 4, 1995. The INS argued that Nguyen was

subject to deportation as an alien who had been convicted of

two crimes involving moral turpitude and an aggravated

felony under INA § 241(a)(2)(A)(ii)and (iii) (codified at 8

U.S.C. §§ 1251 (a)(2)(A){ii)-(iii) (1994)).

' It was established through DNA testing conducted in December 1997

that it is 99.98% certain that Boulais is Nguyen's biological father.

2a

While in state prison in Huntsville, Texas Nguyen

appeared at two hearings before an immigration judge. At

the first hearing, in November 1996, Nguyen indicated that

he wished to challenge the show cause order on the ground

that he was a United States citizen. The judge continued the

hearing to allow Nguyen time to present proof of his

citizenship. At the second hearing in January 1997, his

attorney withdrew, and the immigration judge went forward

and advised Nguyen of his procedural rights and conducted

the hearing. During the colloquy conducted by the

immigration judge, Nguyen testified under oath that he was

not a citizen of the United States and that he was a citizen of

Vietnam. He also admitted that he was convicted of the

aforementioned crimes. On the basis of this testimony the

immigration judge found that Nguyen was deportable.

a timely appealed the immigration judge's order to the

While his appeal was pending, Mr. Boulais instituted a

paternity proceeding in a Texas district court. In February

1998, based on DNA testing results Boulais obtained an

"Order of Parentage" adjudging that he is the father of

Nguyen. Since the BIA's briefing schedule cailed for

submission of Nguyen's brief prior to the completion of

DNA testing and the issuance of the paternity decree,

Nguyen submitted an initial brief to the BIA outlining his

United States’ citizenship argument, but did not include the

DNA evidence to support his claim. On April 15, 1998 he

filed a supplemental brief which included the relevant

evidence. On June 2, 1998, the BIA dismissed Nguyen's

appeal.

On June 26, 1998 Nguyen filed a Motion to Reconsider

with the BIA which has not to date been adjudicated. On

July 2, 1998 Mr. Boulais and Nguyen filed a habeas petition

in the United States District Court, challenging the BIA's

-deportation order and denial of relief from deportation. The

petitioners also filed a request for declaratory judgment as to

3a

the citizenship issue. Because of the multi-layered requests

in the district court action, the magistrate judge agreed to

hold that matter in abeyance pending this court's decision.’

The INS has filed a motion to dismiss this appeal for lack of

jurisdiction, and this court ruled that the motion should be

carried with the case.

DISCUSSION

The Illegal Immigration Reform and Immigrant

Responsibility Act ("IIRIRA") of 1996, Pub. L. No. 104-208,

§ 309(c)(4)(G), 110 Stat. 3009, 626-27, contains the

standards for criminal deportees whose deportation

proceedings commence before IIRIRA's general effective

date of April 1, 1997, and conclude more than thirty days

after its passage on September 30, 1996. Section

309(c)(4)(G) provides that there shall be no appeal permitted

in the case of an alien who is inadmissible or deportable by

reason of having committed a criminal offense covered in

section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D)

of the Immigration and Nationality Act (as in effect as of the

date of the enactment of this Act), or any offense covered by

section 241(a)(2)(A)(ii) of such Act (as in effect on such

date) for which both predicate offenses are, without regard to

their date of commission, otherwise covered by section

241(a)(2)(A)(1) of such Act (as so in effect).

It has been established that this language "completely

forecloses our jurisdiction to review decisions of the BIA."

Lerma de Garcia v. INS, 141 F.3d 215, 216 (Sth Cir. 1999)

(quoting Nguyen v. INS, 117 F.3d 206, 207 (Sth Cir.1997)).

The petitioners do not contest that Nguyen was convicted of

a crime specified in INA § 241(a)(2)(A)(ii), namely crimes

involving moral turpitude, and an aggravated felony.

2 The pending case is styled as Nguyen vs. Reno, Civ. No. H-98-2086

(S.D. Tex., complaint filed July 2, 1998).

4a

If Nguyen is found to be an alien, this court will not have

jurisdiction to review the BIA's decision. See Terrell v. INS,

157 F.3d 806, 809 (10th Cir. 1998) (concluding that

petitioner who was being deported under IIRIRA §

309(c)(4)(g) was not a citizen and therefore the court lacked

jurisdiction to review BIA deportation order). Thus, it is a

threshold question in the determination of our jurisdiction for

this court to determine whether Nguyen is a citizen. See

Okoro v. INS, 125 F.3d 920, 925 n. 10 (Sth Cir. 1997)

(“when judicial review depends on a particular fact or legal

conclusion, then a court may determine whether that

condition exists. The doctrine that a court has jurisdiction to

determine its jurisdiction rests on this understanding”)

(quoting Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997)).

INA § 106(a)(5) states:

Whenever any ,+titioner, who seeks review of an order

under this section, claims to be a national of the United

States and makes a showing that his claim is not

frivolous, the court shall (A) pass upon the issues

presented when it appears from the pleadings and

affidavits filed by the parties that no genuine issue of

material fact is presented; or (B) where a genuine issue

of material fact as to the petitioner's nationality is

presented, transfer the proceedings to a United States

district court for the district where the petitioner has his

residence for hearing de novo of the nationality claim. . .

8 U.S.C. § 1105a (5) (1994).? The petitioners argue that

because the immigration judge and the BIA did not consider

> 8 U.S.C. § 1105a was repealed in 1996, and succeeded by 8 U.S.C. §

1252(b)(S) which also concludes that if there is no genuine issue of

material fact presented as to the petitioner's nationality the court of

Sa

the proof regarding Nguyen's parentage this case should be

transferred to the district court for de novo determination of

these issue. However, the statute does not require that the

BIA or immigration judge have heard this evidence, instead

it only requires that no genuine issue of material fact exist. In

February 1998, a Texas court entered an "Order of

Parentage" which establishes that Boulais is Nguyen's

biological father. Therefore, there are no genuine issues of

material fact regarding Nguyen's nationality leaving this

court to determine whether Nguyen is a citizen of the United

States.

I. Citizenship

It has been recognized that there are only two sources of

citizenship, birth and naturalization. Miller v. Albright, 523

U.S. 420, 423, 118 S. Ct. 1428, 1432, 140 L. Ed. 2d 575

(1998) (citing United States v. Wong Kim Ark, 169 U.S. 649,

702, 18 S. Ct. 456, 477, 42 L. Ed. 890 (1898)). Those

persons not born in the United States may only acquire

citizenship by birth as provided by Acts of Congress. Miller,

523 U.S. at 423.- Nguyen claims that although born in

Vietnam he acquired citizenship at birth under INA § 301.

The provision states that:

The following shall be nationals and citizens of the

United States at birth:...(g) a person born outside the

geographical limits of the United States and its outlying

possessions of parents one of whom is an alien, and the

other a citizen of the United States who, prior to the birth

of such person, was physically present in the United

States or its outlying possessions for a period or periods

totaling not less than five years, at least two of which

were after attaining the age of ,ourteen years.

8 U.S.C. § 1401. However, there is an exception to this

general provision for children born out of wedlock. INA §

6a

309 states that the aforementioned INA § 301 applies to

children born out of wedlock if:

(a)(1) a blood relationship between the person and the

father is established by clear and convincing evidence,

(2) the father had the nationality at the time of the

person's birth

(3) the father (unless deceased) has agreed in writing

to provide financial support until the person reaches

the age of 18 years, and

(4) while the person is under the age of 18 years-

(A) the person is legitimated under the law of

the person's residence or domicile,

(B) the father acknowledges paternity of the

person in writing under oath, or

(C) the paternity of the person is established

by adjudication of a competent court. . .

(c) Notwithstanding the provisions of subsection (a) of

this section, a person born...outside the United States and

out of wedlock shall be held to have acquired at birth the

nationality status of his mother, if the mother had the

nationality of the United States at the time of said persons

birth, and if the mother had been physically present in the

United States or one of its outlying possessions for a

continuous period of one year.

8 U.S.C. § 1409. This provision allows for out of wedlock

children of citizen mothers to automatic citizenship at birth,

while out of wedlock children of citizen fathers cannot

establish their citizenship unless the citizen father takes

7a

certain affirmative steps. It is clear that Nguyen has failed to

establish the citizenship requirements outlined in INA § 309.

Boulais failed to “legitimate” Nguyen before his eighteenth

birthday by acknowledging paternity in writing or

establishing Nguyen's paternity in a court of competent

jurisdiction.

The petitioners argue that although he fails to meet the

requirements of INA § 309, that this provision should not be

applied because it violates the Fifth Amendment of the .

United States Constitution which guarantees equal protection

under the law. Specifically, petitioners contend that the

statute makes it more difficult for male citizens to confer

citizenship on their offspring born out of wedlock than for

citizen mothers to confer citizenship.

This equal protection argument was addressed by the

Supreme Court in Miller v. Albright, see 523 U. S. at 423. A

plurality opinion authored by Justice Stevens,’ applying the

heightened scrutiny standard which is used in gender bias

claims, found that INA § 309 did not violate the equal

protection clause. The court found that the statute met

several important governmental objectives, including

ensuring reliable proof of a biological relationship between

the citizen parent and the child, encouraging a healthy

relationship between the citizen parent and the child while

the child is a minor, and fostering ties between the foreign

born child and the United States.

Justice O'Connor concurring in the judgment disagreed

with the court's application of the heightened scrutiny

standard.’ See Id. at 445-46. Justice O'Connor explained that

Miller's father had earlier been wrongly dismissed from the

action by the district court and therefore there was no first-

* Only Chief Justice Rehnquist concurred in the opinion.

* Justice Kennedy joined in Justice O’Connor’s Concurrence.

8a

party claim of gender discrimination. Jd. at 447-48.

Therefore, the only way for the court to address the gender

discrimination claim would be to allow Miller to represent

her father's interest by giving her third party standing.

However, Justice O'Connor concludes that Miller could not

was no substantial hindrance to her father's ability to assert

his own rights. Jd. at 447-48. Therefore, because the alleged

rights and not the rights of the child, Miller, as the child, was

only entitled to rational basis review of the statute. /d. at

451.

The fractured opinions of the Supreme Court in Miller

demonstrate that we must first address standing in deciding

what level of scrutiny to apply to the gender discrimination

claim made in this case. The question of standing has been

pivotal in recent cases from our sister circuits regarding the

constitutionality of INA § 309. See Terrell, 157 F.3d at 808

(concluding that petitioner's father was not a party to the suit

and petitioner was not entitled to third party standing and

therefore the statute should only be reviewed for rational

basis); United States v. Ahumada-Aguilar, 189 F.3d 1121,

1126 (9th Cir. 1999) (finding third party standing because

petitioner's father was deceased, and ultimately finding the

statute could not withstand heightened scrutiny).

In the present case we have facts that are in some

significant ways distinct from those in Miller. Boulais is a

petitioner in the present action unlike the fathers in Miller

and Terrell. Boulais was not a party to the proceedings

below because the deportation action was brought only

against Nguyen. Boulais is also a petitioner in the habeas

action which is pending in the district court. Therefore, it is

clear that Boulais has made every effort to represent his own

interests in the present suit. We find that Boulais should be

allowed to represent his own interest in the present action. In

Miller, Justice O'Connor stated that: "[the father] originally

9a

filed suit and asserted his own rights but then opted not to

pursue his claim throughout this litigation. It is true that he

was wrongly dismissed from the action . . . and that the

Government made the misguided argument before that court

that ‘the rights, if any, which have been injured are those of

[the daughter], the true plaintiff in this action’." See Miller,

523 U.S. at 448. In the present case, the government also

argues that Boulais' rights have not been injured because he

is not the party who is to be deported.® Based on Justice

O'Connor's clear statement in Miller regarding this argument,

we find the government's position unpersuasive.’ Boulais is

a proper party in this action to challenge the constitutionality

of INA § 309.

Having resolved the standing question we will now

address the constitutionality of the statute in question. The

petitioners argue that INA § 309 is unconstitutional because

° The government cites this court's opinion in Garcia v. Boldin, 691 F.2d

1172, 1183 (Sth Cir. 1982) for the proposition that families of deportable

aliens do not have standing to challenge a deportation order. Unlike this

case, in Garcia the family of the deporatable alien was not attempting to

en atten Ae ty a ae a an es In

the present case INA § 309 directly implicates a father's rights to confer

citizenship on his children.

” It is also important to note that all of the other seven justices who did

not join in Justice O'Connor's concurrence found that even if Miller's

father was not a party to the suit Miller would have third-party standing

to assert her father’s challenge to the statute. In the plurality opinion,

citing Craig v. Boren, 429 U.S. 190, 193-97, 97 S. Ct. 451, 50 L. Ed. 2d

397 (1976), Justice Stevens concluded that Miller's claim relied heavily

on her citizen father's right to transmit citizenship and thus the court

would evaluate the alleged discrimination against him. See Miller, 523

U.S. at 432. While Justice Scalia joined by Justice Thomas did not agree

with the plurality opinion’s reasoning regarding third party standing they

also “accept the petitioner's third party standing.” Jd. at 455 n.1. The

dissenters also conclude that Miller met the requirements for third party

standing. Id. at 473.

10a

it relies on NS eee male and female

parents. First, the IN S contends that as an immi

statute INA § 309 should be reviewed under the “facially

legitimate timate and bona fide reason reason standard” set forth by the

Supreme Court in Fiallo v. Bell, 430 U.S. 787, 97 S. Ct.

1473, 52 L. Bd. 24 50 (1977). In Fiallo, the Supreme Court

held that an immigration statute that distinguished between

“legitimate” and “illegitimate” children of United States

citizens in giving preference for immigration status to aliens,

met equal protection standards because the distinctions in the

Statute were based on a “facially legitimate and bona fide

reason." Id. at 794 (citation omitted). The INS correctly

points out that this court has followed Fiallo in a number of

immigration cases. See e.g., Rodriguez v. INS, 9 F.3d 408,

410, 414 (Sth Cir. 1993) (applying Fiallo limited review

standard to alien's claim seeking waiver of deportation under

INA § 212(c)); Matter of Longstaff, 716 F.2d 1439, 1442-43

(Sth Cir. 1983) (applying Fiallo limited review standard in

deciding alien's claim for naturalization). However, we do

not find that Fiallo dictates the outcome of the present case.

As the plurality opinion in Miller points out there are

significant differences between INA § 309 which is

challenged in the present case, and the INA statute

challenged in Fiallo. Specifically, the statute in Fiallo dealt

with the claims of aliens for special immigration preferences

for aliens, whereas the petitioner's claim in this case is that.

he is a citizen. See Miller, 523 U.S. at 429 (Stevens, J.).

Furthermore, the constitutional challenge in Fiallo dealt with

statutory distinctions between “illegitimate” and "legitimate"

children, an issue which is not presented in this case. /d.

Therefore, we decline to adopt the Fiallo “facially legitimate

and bona fide reason" standard in the present case.

The petitioners contend that recent Supreme Court cases

have established that statutes which rely on outmoded

generalizations about gender cannot survive heightened —

scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515,

lla

540-546, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996). Faced

with the serious and complex question of the

constitutionality of the statute we take guidance from the

most recent reasoning of the Supreme Court on this issue.

The plurality opinion in Miller offers several important

governmental objectives that are met by the INA § 309.

First, the plurality opinion found that the statute helps to

ensure reliable proof of a biological relationship between the

citizen parent and the child. Miller, 523 U.S. at 436

(Stevens, J.). For a mother the blood relationship between

parent and child is evident. Jd. The opinion reasons that in

the case of fathers it is necessary that affirmative steps are

taken to demonstrate the biological relationship. Jd. The

statute allows the father to prove this relationship through

fairly uncomplicated methods such as signing a statement of

paternity under oath, having paternity adjudicated by a

competent court or legitimating the child under the law of

the parent's state. These steps must be taken before the child

reaches eighteen. The plurality opinion in Miller concluded

that requiring the steps to be taken before eighteen insures

that the information relied upon to establish paternity is

reliable. Jd. at 437-38 (Stevens, J.).

The plurality opinion in Miller further found that the

statute is also well tailored to meet the important

governmental objectives of encouraging healthy parent-child

relationships while the child is a minor, and fostering ties

between the foreign born child in the United States. Justice

Stevens concluded that these objectives need to be

encouraged in citizen fathers especially, because in the case

* In Miller, the plurality opinion only addresses the constitutionality of 8

U.S.C. § 1409(a)(4). See Miller, 523 U.S. at 432. The dissent addresses

the constitutionality of 8 U.S.C. § 1409(a)(3) and (a)(4). /d at 473°

(Breyer, J., dissenting). The present case asks us to address the

constitutionality of all of 8 U.S.C. § 1409. Specifically, Boulais did not

meet the requirements set forth in 8 U.S.C. § 1409(a)(3) and (a)(4).

12a

of citizen mothers they will already know the child exists

and be able to develop bonds with the child from an early

age because they will obviously be with the child at its birth.

Id. at 438. (Stevens, J.). Whereas the unmarried citizen father

will not necessarily be present at the birth of the child or

even know of the child's existence, making it impossible for

the citizen father to develop a healthy relationship with the

child. Jd. By requiring fathers to take affirmative steps to

establish paternity the government assures that the father and

child will meet and have an opportunity to develop a

relationship. Jd. For the foregoing reasons set forth by the

Supreme Court's plurality opinion in Miller, we find that

INA § 309 is constitutional.

CONCLUSION

Having found INA § 309 to be constitutional, we also

find that Nguyen does not meet the criteria for citizenship

outlined in 8 U.S.C. § 1401, Boulais did not establish

Nguyen's paternity before he reached the age of majority.

Although Boulais has now obtained an order of parentage

that order was decreed in 1998, and Nguyen was twenty

eight years old. Thus, due to Nguyen's status as an alien,

under IIRIRA this court is precluded from reviewing the

BIA's final deportation order. Thus, we grant the INS's

motion to dismiss the appeal.

) 13a

APPENDIX B

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A22 083 216-Huntsville Date: May 28, 1999

In re: TUAN ANH NGUYEN

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:

Nancy A. Falgout, Esquire

P.O. Box 7873

Houston, Texas 77270

In a decision dated January 30, 1997, an Immigration

Judge found the respondent deportable as charged under

sections 241(a)(2)(A)(ii) and (iii) of the Immigration and

Nationality Act, 8 U.S.C §§ 1251(a)(2)(A)(ii) and (iii). The

Immigration Judge also determined that the respondent was

statutorily ineligible for a waiver of inadmissibility under

section 212(c) of the Act, 8 U.S.C. § 1182(c). The

respondent’s appeal was dismissed by this Board on June 2,

1998. On June 26, 1998, the respondent filed a motion to

reconsider. The motion will be denied.

A motion to reconsider must state the reasons for

reconsideration, be supported by pertinent case precedent,

l4a

and be predicated on a legal or factual defect in the most

recent decision. See 8 C.F.R. § 3.2(b) (1997); Matter of

Cerna, 20 I&N Dec. 399 (BIA 1991). A motion to

reconsider requests that the original decision be reexamined

in light of additional legal arguments, a change of law, or an

argument or aspect of the case that was overlooked. Matter

of Cerna, supra.

The respondent seeks by this motion to challenge the

finding of deportability, claiming derivative United States

citizenship. The respondent maintains his supplemental brief

together with evidence submitted with that supplemental

brief were not considered by the Board when the June 2,

1998, decision was made. It appears that the supplemental

brief and additional evidence were not associated with the

record at the time of our decision. The information

submitted pertains to the evidence going to the question of

the respondent’s parentage. The respondent argues in his

motion that the statutory framework of rules establishing

entitlement to derivative citizenship is unconstitutional, as

the standards required for illegitimate children to obtain

derivative citizenship from a father differ from the standards

required to obtain that status derivatively from the mother. It

is further contended that the respondent’s citizenship claim

could be affected by a case pending before the United States

Supreme Court.

The respondent admitted at the deportation hearing

that he is a native of Vietnam (Tr. at 9). Having admitted his

foreign birth, the respondent is presumed to be an alien. We

previously determined that the respondent had failed to

provide the Immigration Judge with evidence to support his

citizenship claim and had not sustained his burden of going

forward with evidence establishing the claim of United

States citizenship. See Matter of Velasco, 16 I&N Dec. 281

(BIA 1977). Additionally, subsequent to the filing of the

respondent’s motion, the Supreme Court issued its decision

15a

in a case upon which the respondent had intended to rely,

Miller _v. Albright, 523 U.S. 420 (1998). The Supreme

Court’s decision was not, however, favorable to the

respondent, as it held that the different proof requirements

for the father, as opposed to the mother, did not represent an

unconstitutional denial of equal protection. Thus, the

respondent has not demonstrated that our prior decision was

in error.

Based on the foregoing, the motion will be denied.

ORDER: The motion is denied.

/s/

FOR THE BOARD

16a

APPENDIX C

U.S. Department of Justice

E> ecutive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A22 083 216-Huntsville Date: June 02, 1998

In re: TUAN ANH NGUYEN |

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Nancy A. Falgout, Esquire

P.O. Box 7873

Houston, Texas 77270

ORDER:

PER CURIAM. We agree with the. Immigration

Judge that the conviction records submitted in this case

establish by clear, unequivocal, and convincing evidence,

that you are deportable as charged. See Woodby v. INS, 385

U.S. 276 (1966). No arguments presented during the hearing

or on appeal would cause us to disturb this finding.

We note your claim that you are entitled to derivative

United States citizenship. We observe that, at your

deportation hearing you admitted that you are a native of

Vietnam (Tr. at 9). Having admitted your foreign birth, you

are presumed to be an alien. However, you failed to provide

the Immigration Judge with evidence to support your

17a

citizenship claim. You have not sustained your burden of

going forward with evidence establishing your claim of

United States citizenship. See Matter of Velasco, 16, I&N

Dec. 281 (BIA 1977).

You are seeking relief from deportation under section

212(c) of the Immigration and Nationality Act, 8 U.S.C. §

1182(c). However, you are statutorily ineligible for such

relief as an “alien who is deportable by reason of having

committed any criminal offense covered in section

241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by

section 241(a)(2)(A)(ii) for which both predicate offense are,

without regard to the date of their commission, otherwise

covered by section 241(a)(2)(A)(i).” See Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”) § 440(d); Matter of Soriano,

Interiin Decision 3289 (A.G., Feb. 21, 1997).

Additionally, your aggravated felony conviction, for

which you were sentenced to a term of imprisonment of 5

years or more, prohibits you from applying for or being

granted asylum under section 208(d) of the Act, 8 U.S.C. §

1158(d), and also renders you ineligible for withholding of

deportation pursuant to section 243(h)(2)(B) of the Act, 8

U.S.C. § 1253 (h)(2)(B). Matter of O-T-M-T-, Interim

Decision 3300 (BIA 1996).

You also argue that your deportation hearing was

unfair because you were not represented by counsel at your

hearing. However, the record shows that the Immigration

Judge advised you of your right to be represented and

granted you a continuance to obtain representation but you

failed to do so. Additionally, you have not demonstrated

how you were prejudiced by the Immigration Judge’s

actions. The Immigration Judge properly proceeded with the

hearing. See section 292 of the Act, 8 U.S.C. § 1362; 8

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C.F.R § 3.16(a); see generally Matter of Madrigal, Interim

Decision 3274 (BIA 1996).

Accordingly, your appeal is dismissed.

/s/

FOR THE BOARD

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APPENDIX D

U.S. Department Of Justice

Executive Office for Immigration Review

Office of the Immigration Judge

In the Matter of: Case No.:22 083 216

Tuan Anh Nguyen Docket: Huntsville, TX

RESPONDENT IN DEPORTATION PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

Upon the basis of respondent’s admissions, I have

determined that the respondent is deportable on the charge(s)

in the Order to Show Cause.

Respondent has made no application for relief from

deportation.

It is HEREBY ORDERED that the respondent be deported

from the United States to Vietnam on the charge(s)

contained in the Order to Show Cause.

It is FURTHER ORDERED that if the aforenamed country

advises the Attorney General that it is unwilling to accept the

respondent into its territory or fails to advise the Attorney

General within three months following original inquiry

whether it will or will not accept respondent into its territory,

respondent shall be deported to ,

If you fail to appear for deportation at the time and place

ordered by the INS, other than because of exceptional

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circumstances beyond your control (such as serious illness of

the alien or death of an immediate relative of the alien, but

not including less compelling circumstances), you will not be

eligible for the following forms relief for a period of five

years after the date you were required to appear for

deportation:

(1) Voluntary departure as provided for in section

242(b) of the Immigration and Nationality Act;

(2) Suspension of deportation or voluntary departure

as provided for in section 244(e) of the

Immigration and Nationality Act: and

(3) Adjustment of status or change of status as

provided for in section 245, 248 or 249 of the

Immigration and Nationality Act.

Is/

Immigration Judge

Date:_30 Jan. 97

Due: 3 March 97

Respondent reserves appeal.

(originally handwritten).

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