# Petition for Writ of Certiorari — Aquilina v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2655%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1040 ## Text Y Supreme Co; -U. 90-271 ED FILED i. ae) JOSEPH aa AP A - eo WOK, de CLERK No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 JOSEPH N. AQUILINA, M.D. - PETITIONER vs. UNITED STATES OF AMERICA, U.S. JUSTICE DEPARTMENT IMMIGRATION & NATURALIZATION SERVICE PETITION FOR WRIT OF CERTORIARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR WRIT OF CERTORIARI JOSEPH N. AQUILINA, M.D. In Pro. Per. 3406 DAVENPORT AVENUE SAGINAW, MICHIGAN 48602 Tel: (517) 799-4840 “Pp -* Parties To This Proceeding Joseph N. Aquilina M.D., In Pro. Per., Petitioner Respondents: United States of America, U.S. Justice Depart- ment of Immigration and Naturalization. Notice of Entry and Order for Intervention of Parties under Federal Rules of Civil Procedure, Rule 24, has been submitted by Rosemarie E. A. Barone, J.D. of Lansing, Michigan, In. Pro. Per., and Joseph W. Aquilina, M.D. of eatin Michigan, In Pro. Per., on July 7th, 1990, A.D. QUESTIONS PRESENTED (1) Whether U.S.C. Section 301(a)(7) 1952, now Section 301(g) violates due process and equal protection by requiring a ten year residence prior to granting passage of ‘jus sanguinis’ rights, when U.S.C. Section 301(a)(4) 1952, now Section 301(d) only requires a one year residence for the same right? (2) Whether U.S.C. Section 301(a)(7) 1952, now Section 301(g) violates Petitioner’s fundamental right, freedom of choice, of whom to marry by imposing the ten year residence re- quirement? (3) Would a ten year residence requirement which results in the loss of ‘jus sanguinis’ rights and stateless progeny be con- sidered a denial of due process as well as cruel and unusual ‘punishment violative of the Fifth, Eight and Fourteenth Amendments? il TABLE OF CONTENTS PETITION FOR WRIT OF CERTORIARI TO THE UNITED STATES OF COURT APPEALS FOR THE SIXTH CIRCUIT | OPINIONS BELOW 2 JURISDICTION 2 CONSTITUTIONAL AND STATUTORY PROVISIONS 2 STATEMENT OF CASE ; 2 REASONS FOR GRANTING THE PETITION - CONCLUSION 13 INDEX TO APPENDICES Appendix A Opinion of the Court of Appeals, 6th Circuit, No. 89-1565, April 10, 1990. 14 Appendix B- Opinion of the District Court, Eastern District of Michigan, Northern Division, File No. 88-CV-10226-BC, dated April 14, 1989. 16 Appendix C Motion for extension of time for Appeal dated May 7, 1990. Denied 5-11-1990. 24 Appendix D_ Article V; Article VIII; Article XIV, (clause 1). 28 Appendix E Current Applicable Law. 29 Appendix F Immigration & Naturalization Act § 320(a). 30 Appendix G- Immigration & Naturalization Act § 329. 31 iil TABLE OF AUTHORITIES CASES Page Marbury v. Madison, Rae EE BOTs BONED sos 6. ds dd ace da cee eeet ee 11 Rogers v. Bellei, ee Bee a os Sak ha gee on aS Passim United States v. Trevino Garcia, eR re ae 6 Uribe - Temblador v. Rosenberg, es oc one oe ukeamasecesaneeas 6 Villanueva - Jurado v. Rosenberg, ee ee Oe EI Is POs 6 oc bc ccccsscsaceceevies 6 STATUTES United States Code U.S.C.§ 301(d), 1988, (amended § 301(a)(4) 1952) ..... Passim U.S.C. § 301(g), 1988, (amended § 301(a)(7) 1952) ..... Passim Immigration and Nationality Act. Sheen EE SS ob o'ecwebusechacacstéabeacss 3 ee gs ot obs aba bua be Rees y Re rere 5,8 U.S. Constitution, Amendment VIII...................... 8 U.S. Constitution, Amendment XIV ................... 5,6 NO. IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA October Term 1990 Joseph N. Aquilina, M.D., Petitioner vs. United States of America, U.S. Justice Department Immigration & Naturalization Service Defendant, Respondent PETITION FOR WRIT OF CERTORIARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioner, Joseph N. Aquilina, M.D. respectfully prays that a writ of certoriari issue to review the judgement and opinion of the United States Court of Appeals for the Sixth Circuit refus- ing to support a motion for declaring Section 301(a)(7) 1952, now Section 301(g) 1988 unconstitutional on the basis of denial of due process and equal protection when compared tto Section 301(a)(4) 1952, now Section 301(d) 1988. The discrimination within the act takes the form of a longer residence requirement, (10 years v. 1 year), for Fourteenth Amendment citizens who marry non-resident aliens to qualify for the same rights as other citizens who marry non-citizen nationals. OPINIONS BELOW The opinion of the Court of Appeals is recorded as Joseph N. Aquilina, M.D., v. United States of America, Case No. 89-1565 and filed April 10, 1990, and appears in Avpendix A to this peti- tion. The written opinion of the District Court for Eastern District of Michigan, Joseph N. Aquilina, M.D. v. United States of America, File No. 88-CV-10226-BC appears in Appen- dix B. JURISDICTION The Court of Appeals’ Opinion in this matter was filed on April 10, 1990 by Clerk Leonard Green. An untimely Motion for Extension of time for Appeal was denied on May 11, 1990 and is filed in Appendix C. This Court’s jurisdiction is invoked under Title 28, U.S.C. §1254(1) and 28 U.S.C. §2403(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED United States Constitutional Amendment V, Amendment VIII and Section I of the XIV Amendments are set forth in Ap- pendix D. STATEMENT OF CASE On December 5, 1952, the Petitioner immigrated into the United States of America from the island of Malta. He served in the United States Army from October 11, 1954 until October 10, 1956. On November 18, 1955, while serving with the United States Army in Europe he was naturalized as a United States Citizen at Frankfurt, Germany under Immigration and Na- tionality Act Section 329. On August 31, 1957 he was married in Rosenheim, West Germany to Mrs. Johanna E. Aquilina, née Gleissner, his wife. Two children were born in Germany: Rosemarie E. A. Barone, J.D. n€&e Aquilina born on April 25, 1958 and Joseph W. Aquilina, M.D. born on March 27, 1959. — The Petitioner was not allowed to pass ‘jus sanguinis’ rights to his children on the basis of Se::tion 301(a)(7) 1952, now Sec- tion 301(g) which at the time required 10 years of residence in the United States by the father prior to the birth of such children. The Petitioner was never warned by the United States con- sular officials about the citizenship implications for children born to citizens who married non-resident aliens. The Peti- tioner was well known to the U.S. Consular personnel since he was registered with them. They knew that he was naturalized while he was serving in the United States Army. Also the Peti- tioner had informed them of his impending marriage and then of the birth of the children. Since the children had a father (the Petitioner) who was an American citizen, Germany regarded the children to be U.S. citizens. Also, in 1959 the Petitioner’s wife, as a German Na- tional, could not pass her German nationality to the children since only illegitimate children of German women were recognized, her children being legitimate, under German law would take the citizenship of the father. Therefore, the Peti- tioner and his children were abandoned by the United States. The State of Germany declared the children ‘STATELESS’ and issued to them ‘stateless passports.” These children then im- migrated to the United States along with their mother on * August 13, 1959. The Petitioner had to remain in Germany un- til January 1963 when he completed his Doctor of Medicine Degree. On May 1, 1968 these children along with their mother were naturalized as citizens of the United States under section 320(a) of the Natiorality Act of 1952. In spite of United States citizen- ship by ‘naturalization,’ the Petitioner and his family continue to be subjected to unusual United States Government scrutiny when this question of ‘statelessness’ at birth comes up. Consequently on August 9, 1988 the Petitioner filed Civil Ac- tion No. &8-CV-10226-BC in the United States District Court, Eastern Division of Michigan, Northern Division for the deter- mination of the constitutionality of Section 301(a)(7), 1952 now designated Section 301(g), 1988. The Hon. James P. Churchill dismissed this complaint with prejudice on April 14, 1989, pur- suant to Fed. R. Civ. P. 12 (b)(6) for ‘‘failure to state a claim upon which relief can be granted.’’ The Petitioner filed an appeal on May 24, 1989 and subse- quently filed with the Court a Pro-Se Brief, Reply Brief for the Appellant, as well as a Supporting Brief and an Appendix. On April 10, 1990 the United States Court of Appeals for the Sixth Circuit issued an order in which oral argument was denied under Fed. R. App. P. 34(a). The Court also affirmed the District Court’s Order under Rule 9/b)(5), rules of the Sixth Circuit. This Order was not recommended for full text publication. REASONS FOR GRANTING THE PETITION Certoriari should be granted for two reasons: First, the authority utilized by the District Court, and as affirmed by the Court of Appeals for the Sixth Circuit, utilizing Rogers v. Bellei, 401 U.S. 815 (1971), stated in context, simply does not apply to this Petitioner. Second, the Opinions of the District Court, Eastern District of Michigan, Northern Division and as affirmed by the Court of Appeals for the Sixth Circuit are untenable, since this Petitioner did state a claim upon which relief can be granted. This Petitioner proved denial of ‘due pro- cess’ and ‘equal protection’ in that the Congress did not have a legitimate compelling reason to deny this Petitioner’s fun- damental right of freedom of choice, of whom to marry. On August 9, 1988 this Petitioner filed Complaint | No. 88-CV-10226-BC with the District Court, Eastern District of Michigan, Northern Division in which the Petitioner sought a declaration that § 301(a)(7) 1952, now § 301(g) is violative of ‘due process’ and ‘equal protection.’ On April 14, 1989 that Court dismissed that Petition with Prejudice, pursuant to Federal Rules of Civil Procedure 12(bX6), for ‘‘failure to state a claim upon which relief can be granted.’’ That Court relied on Rogers v. Bellei at815, 830 (1971). Bellei is clearly distinguishable from the case at bar, based on the specific facts involved. On May 24, 1989 the Petitioner Filed Appeal No. 89-1565 which was docketed with the Court of Appeals for the Sixth Cir- cuit. That Court denied oral argument under Federal Rule of Appellate Procedure 34a). The Court of Appeals also used Bellei as their authority. The Court of Appeals then affirmed ‘ the District Court’s Order under 9(b)(5), Rules of the Sixth Cir- cuit “‘that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument; or,...’’. The Petitioner once again claims that a fair reading of the Pro-Se Brief and the answers to the questions that were submitted by that Court proves that this Petitioner has been denied both ‘due process’ and ‘equal protection’. Also, the authority of Bellei does not support the position of that Court. Therefore, the position of the Court is untenable. The Petitioner states that $301(a)(4) 1952, now §301(d) 1988, created a right to the passage of ‘jus sanguinis’ rights by the citizen parent to the foreign bern children with only one year of residence in the United States, prior to the birth of the children. The statute under challenge however §301(a)(7) 1952, now § 301(g) 1988, discriminates against this Petitioner by a require- ment of a 10 year residence prior to the birth of the children for the passage of that same right of ‘jus sanguinis’. Therefore, this discrimination within the Act is violative of the ‘equal protec- tion’ provisions guaranteed to this Petitioner by a panopoly of ‘equal protection’ provisions of the United States Constitution including the Fifth Amendment. (Compare | year v. 10 years). v. 10 years). a Therefore, Congress by creating a discriminatory statute did not follow their constitutional mandate to ‘‘/E/stablish a uniform rule of naturalizatio[n]’’ as mandated by the United States Constitution articie I, §8, clause 4. The holding in Rogers v. Bellei, 401 U.S. 815 (1971), as used by the lower Courts is not applicable to this Petitioner. This Petitioner was a Fourteenth Amendment citizen while Mr. Bellei had obtained his citizenship by derivation through a citizen mother and an alien father. The Petitioner also proved that Congress indeed had created a right to the passage of ‘jus sanguinis’ rights by Fourteenth Amendment parents, to their legitimate offspring, with a one year residence in the United States, prior to the birth of such children. The Court quotes Justice Blackmun: ‘‘the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent.’’ Bellei U.S. at 830. That quote was taken out of context. It is simply not applicable to the question of denial of ‘due process’ and ‘equal protection’ to this Fourteenth Amendment citizen of the United States. In this present context the Petitioner claims that he is a Four- teenth Amendment citizen of the United States. The District Court never disputed that fact. The District Court has disputed this Petitioner’s claim that he has a right to pass his ‘jus sanguinis’ rights under §301(a)(4) 1952, now §301(d) 1988, because the Petitioner claimed that right since he had resided in the United States for more than one year prior to the birth of his children. The District Court failed to look at the discrimination within the Nationality Act that denied ‘equal protection’. The Congress created a right to the passage of ‘jus sanguinis’ rights with the legislation of Section 301(a)(4) 1952, now Section 301(d) 1988, which qualified some United States citizens to pass their ‘jus sanguinis’ rights with a residence of one year. The Petitioner claims that he qualifies under that requirement and to deny him that right is violative of both ‘due process’ and ‘equal protection.’ Therefore, the section of the Nationality Act under challenge: §301(a)(7) 1952, now §301(g) 1988, denied the right of this Peti- tioner to pass ‘jus sanguinis’ rights by using a discriminatory residence requirement of 10 years for the same rights that the Congress created under §301(a)(4) 1952, now §301(d), 1988 with only a one year requirement. Since United States citizens are protected by a panopoly of ‘due process’ and ‘equal protection’ provisions, under the United States Constitution, such a denial of ‘equal protection’ is illegal. Therefore, the Be//ei authority, as used by the District Court, fails on its face. The District Court quotes the authority of United States v. Trevino Garcia, 440 F. 2d 368, 369 (Sth Cir. 1971); Villanueva- Jurado v. I.N.S., 482 F 2d 886, 887 (5th Cir. 1973); Uribe- Temblador V. Rosenberg, 423 F. 2d 717, 717-718 (9th Cir. 1970). These cases are not applicable to this Petitioner but they would have been applicable to the Petitioner’s children. The Petitioaer did not include his children as part of this complaint exactly because of the cases quoted above. The Congress can exclude such aliens under the statute under challenge if the foreign born children claim their rights to ‘jus sanguinis’ on their own. The Court has used the principle that ‘‘no alien has the slightest right to naturalization unless all statutory re- quirements are complied with.’’ Bellei at 830. The Honorable Judge Churchill did give the children of this Petitioner standing, in that Court Order, even though the children have been inten- tionally excluded from this complaint. When, however, the Fourteenth Amendment Parent demands ‘due process’ and ‘equal protection’ to pass his ‘jus sanguinis’ rights to his legitimate children, such as in the case before this Honorable Court, then the Congress cannot deny this basic right of our liberty. The lower court stated: ‘Plaintiff Joseph Aquilina, who is not joined by either of his adult children, filed suit on August 9, 1988 seeking United States citizenship at birth for his two naturalized children. Specifically, Plaintiff Aquilina petitioned the Court to declare §301(a)(7) as well as the statute in its current form violative of equal protection.’’ District Court Order, No. 88-CV-10226-BC, page 18. The Petitioner only claimed that with the legislation of §301(a)(4) 1952, now §301(d) 1988, the Congress had created a right for United States citizens to pass their ‘jus sanguinis’ rights to their legitimate progeny with one year of residence in the United States. The Congress at the same time also created an ir- rational statute that denied these same rights to citizens of the United States who married non-resident aliens and who therefore were punished by being required to fulfill a 10 year residence requirement for that same right. The irrationality of the Act is based on two key principles: First, Congress denied ‘due process’ and ‘equal protection’ by using a longer residence requirement of 10 years, as compared to one year for other citizens. Second, Congress also violated Petitioner’s fundamen- tal right to due process, liberty to choose whom to marry, by im- posing a longer punitive residence requirement. The Eighth Amendment protects this Petitioner against cruel and unusual punishment. The Congress required this Petitioner to fulfill a longer residence requirement, that being 10 years prior to the birth of the children, in order to have the right for passage of ‘jus sanguinis’. Other citizens married to non-citizen nationals were qualified with one year of residence prior to the birth of the children, to qualify for this same right. Thus, this Petitioner was punished for marrying a non-resident alien. This resulted in his family being abandoned by the United States. As a result, the government of Germany then took jurisdiction of the Petitioner’s legitimate children declaring them ‘stateless’. The government of Germany recognized only the U.S. citizen- ship of the father. The State of Bavaria, Germany then issued ‘stateless’ passports to the children of this Petitioner since the United States did not have a procedure by which a travel docu- ment could be issued to the Petitioner’s children. In addition, the Petitioner and his family continue to be subject to unusual United States government scrutiny every time the question of ‘statelessness’ at birth has to be entered in completion of government forms, which results in unnecessary delay and an invasion into personal privacy. This denial of ‘due process’ and ‘equal protection’ made this Petitioner a second-class citizen by statute. In order to more clearly set forth Petitioner’s position, it is helpful to closely examine the facts and circumstances con- fronted by this Court in Bellei. Mr. Bellei was born abroad of a citizen mother and an alien father. Mr. Bellei, therefore, had acquired his citizenship by derivation through a citizen mother. He never fulfilled the re- quirements of the first clause of the Fourteenth Amendment and he therefore lost his citizenship when he failed to fulfill the residence requirements of Congress. The Court in Bellei stated that Congress was authorized to impose conditions subsequent to naturalization for citizens like Mr. Bellei. Ibid Bel/ei at 831. As an authority relied on by the lower courts, the Bellei holding is distinguishable. Thus, it should be held only applicable to citizen Bellei and not this Petitioner. This Petitioner was naturalized by a United States Court with proper authority and jurisdiction on November 18, 1955, under §329 of the Immigration and Nationality Act, at Frankfurt, Germany. The Congress had felt compelled to naturalize members of the Armed Forces who were serving honorably dur- ing the Korean War. Therefore, the honorable service and honorable discharge of this Petitioner qualified him as a Four- teenth Amendment citizen of the United States. He is, therefore, absolutely protected from Congressional intrusion in- to his citizenship rights. The holding in Bellei, when analyzed closely proves why this Petitioner is absolutely protected while citizen Bellei was not: **Thus at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the com- bination of three factors, each and all significant: birth in the United States, naturalization in the United States, and under the jurisdiction of the United States.’’ Ibid Bellei at 830. ian ia Note that Justice Black further notes that: ‘*If, for example, Congress should decide to vest authority to naturalize aliens in American embassy officials abroad rather than have the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment.’’ Ibid Bellei at 843. The Petitioner’s claim, therefore, has to do more with the right that is intrinsic in the denial of ‘due process’ and ‘equal protection’ than his right to ‘jus sanguinis.’ The Congress created this Petitioner’s right to ‘jus sanguinis’ by legislating § 301(a)(4) 1952, now § 301(d) 1988. Congress really intended for this Petitioner to be excluded by that statute since this Peti- tioner had neither married a non-citizen national, nor had he resided in the United States for 10 years prior to the birth of the children, which also disqualified him. However, the Constitu- tion comes to the Petitioner’s rescue by the panopoly of ‘due process’ and ’equal protection’ provisions. The Congress, by legislating §301(a)(7) 1952, now §301(g) 1988, could not use this statute to dtny ‘equal protection’ to this Fourteenth Amendment citizen. Also, ‘due process’ will not allow Congress to deny the right to a free choice of a marriage partner within the fundamental right of a free choice to marry. The Petitioner’s claim therefore, that he has those same rights as the citizens who are qualified by Congress under §301(a)(4) 1952, now § 301(d) 1988, is correct, since the Petitioner has pro- ven that he is being denied ‘equal protection’ and such is pro- hibited by a panopoly of ‘equal protection’ provisions of the United States Constitution. Also, when the Congréss wrote the statute under challenge, Congress in fact created an irrational law, as it was always the intent, since the Declaration of Independence, that this Govern- ment of the People legislates statutes for the people within a constitutional mandate. 10 It was, therefore, why the Constitution created that delicate balance between the executive, the legislative and the judiciary branches of government, so as to safeguard those inalienable rights, among which are: **(L]ife, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;(*) that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish ift].’’ The Declaration of Independence, paragraph 2 (U.S. 1776) (*) emphasis added. The Petitioner proves that the authority of Bellei, in which the District Court quoted Justice Blackmun, was not applicable to this Petitioner. The Congress had indeed created a right under § 301(a)(4) 1952, now § 301(d) 1988 to pass ‘jus sanguinis’ rights for citizens of the United States to their legitimate off- spring, with a one year residence, prior to the birth of the children. Since this Petitioner was a Fourteenth Ainendment citizen, he was protected by a panopoly of ‘due process’ and ‘equal protection’ provisions by the United States Constitution and therefore, this Petitioner has the right to the passage of his ‘jus sanguinis’ rights in the same manner as other citizens under § 301(a)(4) 1952, now § 301d) 1988. The Petitioner has proven that the statute under challenge § 301(a)(7) 1952, now § 301(g) 1988, is violative of both ‘due pro- cess’ and ‘equal protection’ and is therefore, null and void, under the well known authority of Marbury v. Madison, | Cranch 137, 2 LEd. 60, 1803. 11 i The Petitioner, therefore, requested this Writ of Certoriari in order to ask this Honorable Court to overrule the previous deci- sions of the District Court and the Court of Appeals since he proved that he had stated a claim upon which relief can be granted. In addition, this Petitioner respectfully requests that this Honorable Court declare the statue under challenge, § 301(a)(7) 1952, now § 301(g) 1988, to be violative of ‘due pro- cess’ and ‘equal protection.’ Further, in the alternative, this Petitioner asks that this Honorable Court grant this Petitioner the right to pass his ‘jus sanguinis’ right to his children without specifically ruling on the constitutionality of the statute under challenge. CONCLUSION For the reasons set forth above, a writ of certoriari should be granted. DATED: July 4, 1990 Respectfully Submitted, del ak. Jobeph N. Aquilina, M.D. In Pro. Per. (*) If this Court elects not to address the issue presented in this writ at the present time, it is requested that the writ issue and that the matter be remanded to the Court of Appeals for re- determination in light of this Court’s Opinion in Bellei. 13