Opposition Brief — Ashcroft v. Lake

FREDERICK A. LAKE,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

CLAUDIA SLOVINSKY

396 Broadway, Suite 601

New York, NY 10013

(212) 925-0101

LUCAS GUTTENTAG

SARA L. MANDELBAUM

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

*Counsel of Record

JONATHAN S. FRANKLIN

LORANE F. HEBERT

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5766

JOHN D.B. LEWIs*

99 Hudson Street

New York, NY 10013

(212) 965-9120

Counsel for Respondent

, “- ~ —_

QUESTION PRESENTED

Whether respondent is entitled to United States citizenship

because 8 U.S.C. § 1409(a) violates the equal protection

guarantee of the Fifth Amendment to the Constitution.

(i)

Cite Lae a. 2 |

TABLE OF CONTENTS

QUESTION PRESENTED ...........cccssssssesesssesesseeees spehioeiinan

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(ii)

TABLE OF AUTHORITIES

Page

CASES:

Breyer v. Meissner, 214 F.3d 416 (3d Cir. 2000)........ 6

Elias v. United States Dep't of State, 721 F. tea

BS AT OR TI inc cnnctenindsencassscsonsaiesnctnncnnsacstoons 6-7

Hodel v. Irving, 481 U.S. 704 (1987) ........ccccsesserserseees 6

Miller v. Albright, 523 U.S. 420 (1998) .......sccesseseesees 6

Powers v. Ohio, 499 U.S. 400 (1991).........:.sescsersseeees 5

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

CE Ge, TID sisccctsttccossnntinincnivinnieniininasiaiiaiiieiapacanaitiges 6

Wauchope v. United States Dep’t of State, 985 F.2d

BT Ce FI tiictinicesenscrtesanencrcttninninsnsipatinntiens 6-7

STATUTES:

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SOF. D Se eth sekishntncntnsiscenensoscntiduiciadiinionaiaiiniaan passim

Fs ee cinrrtniiintisecvsniatiipsaiiecnssthcsihgitiannapaien om

DFE, OBIE ccccditrncevsssceennssatincaicvctninedusiecienimshesniniiit 7

(iii)

IN THE

Supreme Court of the United States

No. 00-963

JANET RENO,

Petitioner,

v.

FREDERICK A. LAKE,

Respondent.

On Petition for a Writ of Ce: tiorari to

the United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

Respondent Frederick A. Lake agrees with petitioner (the

“Government”) that consideration of this petition should be

deferred pending resolution of Nguyen v. INS, No. 99-2071,

which presents the same issue. However, respondent does

not agree with the Government’s alternative suggestion that

the Court should grant certiorari and summarily reverse on

the question of standing in the event the disposition of this

petition is not controlled by Nguyen. Accordingly, the Court

should hold this petition pending a decision in Nguyen. But

if the Court concludes, at that time, that this petition may not

be controlled by the decision in Nguyen, respondent requests

that the Court allow him a further opportunity to respond to

the Government’s alternative suggestion and to address the

significance of the Nguyen decision.

2

COUNTERSTATEMENT

Mr. Lake was born in Jamaica on March 31, 1953 to Edith

Mahabeer White, then a Jamaican citizen, and Joseph A.

Lake, Sr., a United States citizen. Pet. App. 2a. Although

Mr. Lake’s parents never married, there was never any

question that Joseph Lake was his father, and Mr. Lake had

substantial, frequent, and meaningful contact with his father

over the years. See Ct. App. J.A. 117, 120-121, 127-132,

153-154, 162-166, 169. During Mr. Lake’s childhood and

adolescence, his father went to Jamaica frequently and

always brought his son gifts, such as toys, clothing, and

money. /d. at 120-121, 127-128, 162-165. His father also

wrote him often, sending him cards and letters, and on

special occasions such as birthdays and holidays, barrels and

boxes containing clothing, sneakers, and food items. /d. at

128, 165-166. The relationship between father and son was

close and loving. Jd. at 163. Mr. Lake’s father mentioned

him frequently to his American-born brothers, referred to

him in conversation with others as his “son,” and included

him in the listing of his children in a family Bible. Jd. at 129,

152-153, 163, 235-237. Joseph Lake repeatedly expressed a

desire that Mr. Lake and ius American-bor siblings “meet as

a family” one day in the United States. A: at 121. Joseph

Lake died on September 21, 1997, before his son was placed

in removal proceedings. Jd. at 119, 122, 274.

Mr. Lake entered the United States as a legal permanent

resident on January 25, 1987, and has resided here ever since.

He is married and has two children, both of whom are United

States citizens. See Declaration of Frederick A. Lake at 2,

Ex. 2 to Motion to Stay Deportation and Removal (2d Cir.

filed Sept. 18, 1999). Mr. Lake is gainfully employed as an

automobile mechanic, is a substantial contributor to the

household’s income, and is the primary caregiver for his two

pre-school children during the day. Jd. at 2.

3

On April 19, 1991—despite substantial evidence that he

had been in Jamaica at the time—Mr. Lake was convicted of

an armed robbery that had taken place in New York. On July

15, 1997, after serving the minimum term of his sentence,

Mr. Lake was paroled, and he was subsequently released

from that parole before the end of his term. Solely as a

consequence of his conviction, INS agents arrested Mr. Lake

on March 31, 1998, when he appeared for a scheduled

appointment with his parole officer. He was subsequently

released on bail, and continues to reside in New York with

his family. Mr. Lake has never otherwise been arrested or

convicted of any crime in any country.

On May 6, 1998, removal proceedings were commenced.

During those proceedings, Mr. Lake argued that he had

acquired United States citizenship at birth through his father.

Mr. Lake contended that he was entitled to United States

citizenship because the restrictions placed on his attainment

of that right by 8 U.S.C. § 1409(a) violate the equal protec-

tion guarantee of the Fifth Amendment. The Immigration

Judge held that he lacked the authority to consider Mr.

Lake’s equal protection challenge in the absence of a defini-

tive ruling from this Court on the question. See Pet. App.

33a. Mr. Lake appealed the Immigration Judge’s decision to

the Board of Immigration Appeals (“BIA”), raising, inter

alia, his constitutional challenge to Section 1409(a). The

BIA dismissed his appeal without considering that claim on

the ground that it lacks authority to consider the constitution-

ality of statutes it administers. Pet. App. 23a-24a.

Mr. Lake filed a timely petition for review with the Second

Circuit, which reversed the decision of the BIA without

dissent. The Court of Appeals held that Section 1409(a) con-

travenes equal protection because it improperly discriminates

against citizen fathers in their ability to transmit citizenship

to their non-marital children born abroad, and that Mr. Lake

is entitled to United States citizenship as a result. Pet. App.

13a-18a. The court also rejected the Government’s argument

4

that Mr. Lake lacked third-party standing to raise the equal

protection rights of his deceased father. Jd. at 11a-1i2a.

Mr. Lake also argued, in the alternative, that the BIA’s

decision should be vacated because 8 U.S.C. § 1182(h)—

which precludes Mr. Lake from applying for discretionary

relief from deportation—contravenes equal protection.

Assuming arguendo that Mr. Lake is not a United States

citizen and is instead a lawful permanent resident,

Section 1182(h) would prevent him from applying for

discretionary relief because of his conviction, even though

similarly situated aliens who have never attained legal

permanent resident status (including illegal aliens) can seek

such relief. Mr. Lake therefore argued that the statute

irrationally discriminated against legal permanent residents.

However, in view of its holding that Mr. Lake is a United

States citizen, the Second Circuit did not reach that

alternative claim. Pet. 4a.

DISCUSSION

1. Weagree with the Government that “(t]he Court * * *

should hold the petition in this case pending the decision in

Nguyen.” Pet. 11. The principal issue in this case is whether

Mr. Lake is entitled to United States citizenship because 8

U.S.C. § 1409(a) unconstitutionally discriminates on the

basis of gender. That question is presented in Nguyen, which

was argued on January 9, 2001. It appears that the only pot-

entially relevant difference between this case and Nguyen is

that the petitioner in Nguyen, by virtue of his age, is able to

elect between two different versions of Section 1409, while

Mr. Lake is subject to the more restrictive version of the

statute as it existed before its 1986 amendment. See Pet. 10.

However, because both versions discriminate against fathers,

no party to this case has yet suggested that the differences be-

tween the two versions affect the equal protection analysis as

presented by the petitioner in Nguyen. See Pet. App. Sa-6a.

Thus, there is a substantial likelihood that this petition will be

5

controlled by the disposition in Nguyen, and Lake agrees that

the petition should be held pending a decision in that case.

2. The Government nevertheless asserts that “if the

Court’s decision in Nguyen fails to resolve the merits of the

constitutional issue in a manner that controls the decision of

the constitutional issue in this case * * * then * * * the Court

may wish to grant the petition for certiorari and summarily

reverse the judgment of the court of appeals on third-party

standing grounds.” Pet. 11-12. We understand the Govern-

ment to be conceding that if the Court were to hold in

Nguyen that the petitioner in that case is entitled to United

States citizenship by virtue of the unconstitutionality of

Section 1409(a), then the Government would be estopped

from urging a different result in Mr. Lake’s case. We concur

with this understanding, and the Court should therefore deny

the petition in this case if it invalidates the statute in Nguyen.

However, we disagree with the Government’s alternative

suggestion that the Court should grant the petition and

“summarily reverse” on the question of third-party standing

in the event the decision in Nguyen does not control the

disposition of this petition. Even the Government states that

it “dofes] not believe that the third-party standing issue is

itself of sufficient importance to warrant plenary review by

this Court * * *.” Jd. at 11. We agree. Accordingly, there is

no basis for granting certiorari on the standing question,

much less a basis for summarily reversing on that question.

A litigant seeking to assert the rights of another party must

satisfy three criteria: (1) an injury in fact, giving rise to a

sufficiently concrete interest in the outcome of the issue in

dispute; (2) a sufficiently close relation to the third party; and

(3) some hindrance to the third party’s ability to protect his

or her own interests. Powers v. Ohio, 499 U.S. 400, 410-411

(1991). As the Court of Appeals noted, “there is no dispute

that Lake has satisfied the first two elements.” Pet. App. 11a.

As to the third factor, the Court of Appeals easily rejected the

6

Government’s contention that the death of Mr. Lake’s father

did not sufficiently hinder him from asserting his own rights.

As the court held:

The Government cites no authority for the proposition

that a litigant seeking third-party standing must affirma-

tively demonstrate that the deceased holder of a right de-

sired during his or her lifetime to vindicate that nght and

was hindered in doing so. We decline to read such a re-

quirement into the law.

Pet. App. 11a.

Far from presenting grounds for certiorari or summary

reversal, the Second Circuit’s decision comports with the

holdings of every court—including this Court—to have

addressed the question. The precedents are unanimous that

the death of the third party whose rights are being asserted is

a sufficient “hindrance” giving rise to third-party standing.

See, e.g., Hodel v. Irving, 481 U.S. 704, 711-712 (1987);

Breyer v. Meissner, 214 F.3d 416, 423 (3d Cir. 2000); United

States v. Ahumada-Aguilar, 189 F.3d 1121, 1126 (9th Cir.

1999); Wauchope v. United States Dep't of State, 985 F.2d

1407, 1411 (9th Cir. 1993); Elias v. United States Dep't of

State, 721 F. Supp. 243, 247 (N.D. Cal. 1989).

Indeed, as the Court of Appeals noted (Pet. App. 11a-12a),

even the two Justices in Miller v. Albright, 523 U.S. 420

(1998), who did not find third-party standing in that case

specifically acknowledged death to be an “extreme example”

of the requisite “hindrance.” Jd. at 449 (O’Connor, J., con-

curring in the judgment). In none of the cited cases did the

court consider it relevant whether the third party could have

asserted his rights prior to his death, even though it is readily

apparent from the facts of each case that the third party could

have done so. See Irving, 481 U.S. at 709-710 (challenge to

statute providing for escheat of certain property interests);

Breyer, 214 F.3d at 423 (in challenge to statute allowing citi-

zen fathers but not mothers to transmit citizenship, the death

7

of the plaintiff's mother “most definitely constitute[d] a hind-

rance to her assertion of her own rights”); Ahumada-Aguilar,

189 F.3d at 1126 (challenge to Section 1409); Wauchope,

985 F.2d at 1409-10 (challenge to statute allowing citizen

fathers but not citizen mothers to transmit citizenship to

children born abroad); Elias, 721 F. Supp. at 244 (same).

In accord with this unanimous weight of authority, the

Court of Appeals properly declined to impose such a require-

ment on the facts of this case. Pet. App. lla. Mr. Lake’s

father died before his son was placed in removal proceedings,

while a proceeding to challenge Mr. Lake’s underlying con-

viction was still pending. Thus, prior to his death, there was

no need for Mr. Lake’s father to have gone through the extra-

ordinary time and expense of mounting an equal protection

challenge to Section 1409(a). Mr. Lake was admitted into—

the United States as a lawful permanent resident in 1987 and

could subsequently have sought to become a naturalized U.S.

citizen on his own, without the need for such a constitutional

case. See 8 U.S.C. §§ 1421, 1427. As the Court of Appeals

correctly held, “{a]jt the time that the necessity for Lake’s

constitutional challenge became apparent, Joseph Lake was

irrevocably and finally hindered from vindicating his_own

rights, and we will not speculate as to his earlier intentions.”

Pet. App. 12a.

It borders on the absurd for the Government to contend that

Mr. Lake’s father was required to commence a constitutional

attack on Section 1409 before the INS commenced removal

proceedings against his son, or that a court must attempt to

divine what the deceased Joseph Lake would now want his

son to do. Accordingly, given the lack of any even arguable

conflict among the lower courts and the Government’s own

concession that the standing issue does not warrant certiorari,

the Court should reject the Government’s suggestion that the

Court grant certiorari and summarily reverse on that issue if

Nguyen is not found controlling.

3. Given that Nguyen involves the same issue as this

case, it appears likely that this petition will be controlled by

the decision in Nguyen (although Mr. Lake, as noted above,

has additional arguments against a finding of removability

which the Second Circuit did not reach). However, in the

event the Court believes, following its decision in Nguyen,

that the decision in that case may not be controlling here,

respondent respectfully requests that the Court allow him a

further opportunity to address the Government’s petition in

light of the decision in Nguyen. Only after that decision can

respondent fully assess its impact on this case.

CONCLUSION

For the foregoing reasons, consideration of the petition

should be deferred pending resolution of Nguyen. In the

event the Court concludes that this petition is not controlled

by the decision in that case, the Court should allow respon-

dent a further opportunity to respond to petitioner’s argu-

ments on standing and to otherwise address the significance

of the Nguyen decision.

Respectfully submitted,

CLAUDIA SLOVINSKY

396 Broadway, Suite 601

JONATHAN S. FRANKLIN

LORANE F. HEBERT

New York, NY 10013 HOGAN & HARTSON L.L.P.

(212) 925-0101 555 Thirteenth Street, N.W.

Washington, D.C. 20004

LUCAS GUTTENTAG (202) 637-5766

SARA L. MANDELBAUM

AMERICAN CIVIL LIBERTIES JOHND.B. LEwis*

UNION FOUNDATION 99 Hudson Street

125 Broad Street New York, NY 10013

New York, NY 10004 (212) 965-9120

(212) 549-2500

*Counsel of Record Counsel for Respondent