Villegas-Sarabia, et al v. Johnson, et al

Filing 30

ORDER GRANTING IN PART AND DENYING IN PART 13 Government's Motion to Dismiss and GRANTS Petitioners Petition for Writ of Habeas Corpus. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LEONARDO VILLEGAS-SARABIA §
and LEONARDO VILLEGAS, JR.,
§
§
Petitioner-Plaintiffs,
§
§
vs.
§
§
JEH JOHNSON, Secretary of the
Department of Homeland Security,
§
ENRIQUE LUCERO, Field Office
§
Director for Immigration and Customs §
Enforcement, LEON RODRIGUEZ,
§
Director of U.S. Citizenship and
Immigration Services, MARIO ORTIZ, §
San Antonio District Director for U.S. §
Citizenship and Immigration Services, §
and REYNALDO CASTRO, Warden of §
the South Texas Detention Center,
§
§
Respondents-Defendants.
§
________________________________

CV. NO. 5:15-CV-122-DAE

ORDER GRANTING IN PART AND DENYING IN PART THE
GOVERNMENT’S MOTION TO DISMISS AND GRANTING PETITIONER’S
PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is a Second Amended Petition for Writ of Habeas
Corpus filed by Petitioner Leonardo Villegas-Sarabia (“Petitioner”) (Dkt. # 4) and
the Original Complaint filed by Petitioner and his father, Leonardo Villegas, Jr.

1

(“Villegas, Jr.”).1 Jeh Johnson, Secretary of the Department of Homeland Security
(“DHS”); Enrique Lucero, Field Office Director for Immigration and Customs
Enforcement; Leon Rodriguez, Director of U.S. Citizenship and Immigration
Services (“USCIS”); Mario Ortiz, San Antonio District Director for USCIS; and
Reynaldo Castro, Warden of the South Texas Detention Center (collectively, the
“Government”) have filed a Motion to Dismiss (Dkt. # 13). The Court held a
hearing on the Petition and the Motion to Dismiss on August 6, 2015. At the
hearing, Lance E. Curtright, Esq., represented Petitioner. Assistant United States
Attorney Gary L. Anderson and Lindsay C. Dunn, Esq., represented the
Government. After careful consideration of the Petition and the memoranda
supporting and opposing the Government’s Motion to Dismiss, the Court, for the
reasons that follow, GRANTS IN PART AND DENIES IN PART the
Government’s Motion to Dismiss, DECLARES that the physical presence
requirements under 8 U.S.C. § 1409, as that statute applied at the time of
Petitioner’s birth, violate the Constitution’s guarantee of equal protection under the
Fifth Amendment, and GRANTS Petitioner’s Petition for Writ of Habeas Corpus.

1

The habeas claim and the claims for declaratory and injunctive relief were
separated into two actions following the Magistrate Judge’s February 18, 2015
show cause order. (Dkt. # 3.) The Court subsequently found that the claims
should not have been separated, and ordered them consolidated on July 30, 2015.
(Dkt. # 23.) Both the Second Amended Petition for Writ of Habeas Corpus filed
by Petitioner (Dkt. # 4) and the Original Complaint filed by Villegas, Jr. and
Petitioner in civil action number 5:15-cv-160 (Dkt. # 1) are now before the Court.
2

BACKGROUND
The parties do not dispute the relevant facts of this case. Petitioner
was born in Mexico on March 16, 1974. (“Am. Pet.,” Dkt. # 4 ¶ 20.) Petitioner’s
father, Leonardo Villegas, Jr. (“Villegas, Jr.”), was born in Eagle Pass, Texas, on
August 10, 1955, and is thus a United States citizen by birth. (Id. ¶ 17; Dkt.
# 13-2, Ex. G.) Villegas, Jr. lived in the United States continuously from his birth
in 1955 through 1960, and from 1965 to the present. (Am. Pet. ¶ 17.) Petitioner’s
mother is a citizen of Mexico. (Id. ¶ 19.) Petitioner’s parents were not married at
the time of his birth. (Id. ¶ 21.) A few months after his birth, Petitioner moved
with his parents to the United States and subsequently obtained lawful permanent
resident status on July 11, 1985, at the age of 10. (Id. ¶ 24; Dkt. # 14 at 2.)
Petitioner’s parents married when Petitioner was 13, and Petitioner was
“legitimated” by virtue of their marriage. (Am. Pet. ¶ 22; Dkt. # 14 at 2; Dkt.
# 13-7, Ex. G.)
On November 30, 2011, Petitioner was indicted for possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922. (Id. ¶ 25.) Petitioner
pled guilty on June 28, 2012, and was sentenced to 30 months imprisonment, with
credit for time served since the date of indictment, on June 14, 2013. (Dkt. # 13-2,
Ex. B.) Between his plea and his sentencing, Defendant filed an application for a
certificate of United States citizenship with USCIS, claiming that he was a
3

derivative citizen through his father. (Am. Pet. ¶ 26.) USCIS denied Petitioner’s
application on December 12, 2012, on the basis that Petitioner’s father was 18
years old at the time of Petitioner’s birth and thus could not have met the statutory
requirement that he have been physically present in the United States for ten years,
five of which must have been after the age of 14, prior to Petitioner’s birth. (Id.
¶ 27; Dkt. # 13-7, Ex. G.) Petitioner filed a motion before USCIS to reopen the
decision on December 7, 2014; as of May 8, 2015, that motion remained pending.
(Dkt. # 14 at 2.)
On January 13, 2015, Petitioner was issued a Notice to Appear before
an immigration judge for removal proceedings and transferred to the custody of
DHS. (Dkt. # 14 at 3.) On January 21, 2015, Petitioner moved for reconsideration
of his bond status before the immigration court. (Am. Pet. ¶ 33.) The immigration
court held a custody redetermination hearing on January 29, 2015, at which the
immigration judge determined that Petitioner should be held without bond pending
his removal proceedings pursuant to 8 U.S.C. § 1226(c). (Dkt. # 13-2, Ex. B; Dkt.
# 13-3, Ex. C; Dkt. # 13-4, Ex. D.) Petitioner appealed the immigration judge’s
denial of his motion for bond redetermination on March 23, 2015, arguing that he
was not subject to mandatory detention because he is a U.S. citizen under a
constitutional interpretation of the derivative citizenship laws. (Dkt. # 13-5, Ex.
E.) His appeal was denied by the Board of Immigration Appeals (“BIA”). (Dkt.
4

# 20 at 4 n.3.) On May 28, 2015, the Immigration Judge issued an order that
Petitioner be removed to Mexico, which remains pending on appeal to the BIA.
(Dkt. # 17-1, Ex. A; Dkt. # 20 at 2 n.1.) Petitioner remains in DHS custody.
On February 17, 2015, Petitioner and his father jointly filed an
Original Complaint and Petition for Writ of Habeas Corpus. (Dkt. # 1.) In the
Complaint and Petition, Petitioner claims that he is a United States citizen and
therefore may not be detained under 8 U.S.C. § 1226(c), which provides for the
detention of criminal aliens. Petitioner and his father also seek (1) an injunction
requiring the USCIS to issue a certificate of citizenship to Petitioner, and (2) a
declaration that 8 U.S.C. §§ 1401 and 1409, as those statutes applied to them in
1974, are unconstitutional, and that Petitioner is a citizen of the United States.
On April 24, 2015, the Government filed a Motion to Dismiss. (Dkt.
# 13.) After Petitioner filed a Response and the Government filed its Reply, the
Court ordered the Government to file a supplemental response addressing
Petitioner’s equal protection claim. (Dkt. # 16.) The Government filed its
supplemental briefing on June 10, 2015, and Petitioner filed a Response to the
supplemental briefing on June 24, 2015. (Dkt. ## 17, 20.) Finally, Petitioner filed
a notice of new case law on July 10, 2015, to which the Government responded on
August 4, 2015. (Dkt. ## 22, 24.)

5

DISCUSSION
In his habeas petition, Petitioner argues that his detention by DHS
under 8 U.S.C. § 1226 is unlawful because he is a United States citizen.
Petitioner’s claim of citizenship is based on his argument that the physical
presence requirements imposed on unmarried citizen parents of foreign-born
children under 8 U.S.C. § 1409, as that statute applied at the time of his birth,
unconstitutionally discriminate on the basis of gender in violation of the Fifth
Amendment’s guarantee of equal protection. 2 Under § 1409(c), a child born
abroad to an unwed citizen mother and a non-citizen father acquired citizenship at
birth if the mother had previously been physically present in the United States for a
continuous period of one year. 8 U.S.C. § 1409(c) (1974). By contrast, under
§ 1409(a), which incorporates the physical presence requirements of 8 U.S.C.
§ 1401(a)(7), a child born abroad to an unwed citizen father and a non-citizen
mother acquired citizenship at birth only if the father was previously physically
present in the United States for ten years, five of which must have been after the

2

While the equal protection rights asserted in Petitioner’s habeas petition are those
of Villegas, Jr., who was subject to more demanding physical presence
requirements in order to transmit his citizenship than those imposed on unmarried
citizen mothers, both Petitioner and Villegas, Jr. are parties to this action.
Villegas, Jr. has standing to raise his constitutional rights in his claim for
declaratory relief, and the constitutional claim may therefore be considered by this
Court. See Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53, 58 (2001).
6

age of 14. 8 U.S.C. §§ 1401(a)(7), 1409(a) (1974). 3 Petitioner contends that this
gender-based difference violates equal protection, and that the appropriate remedy
is to extend the benefits of unmarried citizen mothers of foreign-born children
under § 1409(c) to unmarried citizen fathers. Petitioner argues that under this
3

The statutes provided, in relevant part:
§ 1409. Children born out of wedlock.
(a) The provisions of paragraph[] . . . (7) of section 1401(a) of this
title . . . shall apply as of the date of birth to a child born out of
wedlock . . . if the paternity of such child is established while such
child is under the age of twenty-one years by legitimation.
*
*
*
(c) Notwithstanding the provision 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 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.

Id. § 1409.
§ 1401. Nationals and citizens of United States at birth.
(a) The following shall be nationals and citizens of the United States
at birth:
*
*
*
(7) a person born outside the geographic 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 ten years, at
least five of which were after attaining the age of fourteen years.
8 U.S.C. § 1401(a)(7) (1974).
7

constitutional interpretation of the statutes in question, he is a United States citizen,
and his detention as an alien is therefore unlawful.
Additionally, both Petitioner and Villegas, Jr. seek a declaratory
judgment that § 1409 is unconstitutional and that Petitioner is a citizen of the
United States. Finally, they seek an injunction requiring USCIS to issue Petitioner
a certificate of citizenship.
I.

Jurisdiction
A.

Habeas Petition
The posture in which Petitioner’s claim is presented requires the Court

to first determine whether it has jurisdiction to hear his habeas petition. The REAL
ID Act of 2005, Pub. L. 109-13, 119 Stat. 302, governs judicial review of
administrative removal orders. See Jean v. Gonzalez, 452 F.3d 392, 396 (5th Cir.
2006). Under that statute, “the sole and exclusive means for judicial review” of a
final order of removal is by filing a petition for review in the proper court of
appeals. 8 U.S.C. § 1252(a)(1), (a)(5), (b)(9). Such judicial review includes
habeas corpus review under 28 U.S.C. § 2241. Id. § 1252(a)(5), (b)(9). The
REAL ID Act does not, however, preclude habeas review of challenges to
detention that are independent of challenges to a removal order. See id.
§ 1252(a)(5) (“[A] petition for review filed with an appropriate court of appeals . . .
shall be the sole and exclusive means for judicial review of an order of removal
8

entered or issued under any provision of this Act.” (emphasis added)); see also
Baez v. Bureau of Immigration & Customs Enforcement, 150 F. App’x 311, 312
(5th Cir. 2005) (non-precedential) (citing H.R. Rep. No. 109-72, at 300 (2005)
(“[S]ection 106 would not preclude habeas review over challenges to detention that
are independent of challenges to removal orders. Instead, the bill would eliminate
habeas review only over challenges to removal orders.”)); Nadarajah v. Gonzalez,
443 F.3d 1069, 1075 (9th Cir. 2006) (holding that “the jurisdiction-stripping
provision of the REAL ID Act does not apply to federal habeas corpus petitions
that do not involve final orders of removal”).
Here, Petitioner is not challenging a final removal order. Indeed,
there is no final removal order to challenge—Petitioner’s appeal to the BIA of the
immigration judge’s removal order remains pending, (Dkt. # 20 at 2 n.1), and an
order of removal appealed to the BIA does not become final until the BIA affirms
the order and dismisses the appeal, 8 U.S.C. § 1011(a)(47)(B); 8 C.F.R. § 1241.1.
Petitioner is instead challenging his detention by DHS, which has detained
Petitioner as a deportable criminal alien pursuant to 8 U.S.C. § 1226(c). The
jurisdiction-stripping provisions of § 1252 therefore do not apply to Petitioner’s
habeas petition, and the Court has jurisdiction to hear his habeas claim.
The Government argues that Petitioner’s habeas claim and his
removal proceedings are “inextricably linked,” and that by “prejudging Petitioner’s
9

citizenship in a habeas proceeding now, the Court could interfere with Petitioner’s
final order of removal later.” (Dkt. # 17 at 3.) The REAL ID Act, however, does
not prohibit district courts from “interfering” with final removal orders that have
yet to issue. It instead vests exclusive jurisdiction to hear challenges to final
removal orders in the appellate courts. Where a petitioner is not challenging a final
removal order, § 1252 does not prohibit a district court from ruling on a habeas
petition challenging the lawfulness of the petitioner’s detention. The courts will
not find habeas review foreclosed absent “a particularly clear statement” of intent
from Congress. Demore v. Kim, 538 U.S. 510, 517 (2003). Finding no such
statutory statement applicable here, the Court finds that it has jurisdiction over
Petitioner’s habeas petition.
B.

Declaratory and Injunctive Relief
As set forth above, in addition to Petitioner’s habeas claim, Petitioner

and Villegas, Jr. also seek a declaration that 8 U.S.C. § 1409, as that statute applied
at the time of Petitioner’s birth, is unconstitutional, and that Petitioner is a citizen.
Petitioner and his father further seek an order requiring USCIS to issue a certificate
of citizenship.
A person can affirmatively seek proof of citizenship by filing an
application with USCIS under 8 U.S.C. § 1452(a). Rios-Valenzuela v. Dep’t of
Homeland Sec., 506 F.3d 393, 397 (5th Cir. 2007). If the application is denied and
10

the denial is affirmed on administrative appeal, he may seek a judicial declaration
of citizenship under 8 U.S.C. § 1503(a). Id. Under that statute, “no [declaratory
judgment] may be instituted in any case if the issue of such person’s status as a
national of the United States (1) arose by reason of, in connection with any
removal proceeding under the provisions of this chapter or any other act, or (2) is
in issue in any such removal proceeding.” § 1503(a).
Section 1503(a)(2) thus bars actions seeking a declaration of
citizenship where removal proceedings have already been initiated and the
petitioner’s citizenship is in issue in the removal proceedings. Rios-Valenzuela,
506 F.3d at 397 (“[A] purported citizen may not initiate or begin a declaratory
judgment action to establish his citizenship if it is already being litigated in a
removal proceeding.”). Here, Petitioner and Villegas, Jr. brought their action for a
declaration of Petitioner’s citizenship on February 17, 2015. (Dkt. # 1.) Because
Petitioner’s removal proceedings were initiated on January 13, 2015, and Petitioner
raised his citizenship claim as a defense in those proceedings, this Court is without
jurisdiction to declare him to be a United States national, and for the same reason
may not issue an order requiring USCIS to issue Petitioner a certificate of
citizenship. The Court therefore DISMISSES for lack of jurisdiction Petitioner
and Villegas, Jr.’s claims for a declaration that Petitioner is a United States
national and for an injunction requiring USCIS to issue a certificate of citizenship.
11

The jurisdictional bar of § 1503(a) does not, however, apply to
Petitioner and Villegas, Jr.’s claim for a declaration that § 1409 is unconstitutional.
By its terms, § 1503(a) applies only to an action by a person denied “a right or
privilege as a national of the United States” “for a judgment declaring him to be a
national of the United States.” It does not act to bar a claim for a declaratory
judgment regarding the validity of a federal statute under the Constitution, and the
Court therefore has jurisdiction to decide Petitioner and Villegas, Jr.’s claim
seeking a declaration that § 1409 violates equal protection and is unconstitutional.
II.

Equal Protection
As discussed above, Petitioner’s claim for habeas relief rests on his

contention that 8 U.S.C. § 1409, as it applied at the time of his birth, violates the
Fifth Amendment’s guarantee of equal protection. Under that statute, an unwed
citizen mother could confer citizenship on her child born abroad if she had been
continuously physically present in the United States for one year at any time prior
to the child’s birth. § 1409(c). An unwed citizen father, by contrast, could confer
citizenship on his child born abroad only if he had been physically present in the
United States for a total of ten years prior to the child’s birth. §§ 1409(a),
1401(a)(7). Additionally, five of the years of physical presence in the United
States must have occurred after the father’s fourteenth birthday. Id. Under this

12

latter requirement, an 18-year-old citizen father like Villegas, Jr. could not, by
definition, transfer his citizenship to a nonmarital child born abroad.
Two appellate courts have considered whether this gender-based
difference in an unmarried citizen parent may confer citizenship on his or her
foreign-born children violates equal protection. In United States v. Flores-Villar,
536 F.3d 990 (9th Cir. 2008), a panel of the Ninth Circuit held that the different
physical presence requirements for unwed mothers and fathers to confer
citizenship on a foreign-born child did not violate equal protection, finding that the
physical presence requirements were substantially related to the important
government interests of avoiding statelessness and assuring a link between the
father, the United States, and the child born abroad. 4 Id. at 996–97. Recently, a
panel of the Second Circuit came to the opposite conclusion, holding that the
physical presence requirement unconstitutionally discriminated on the basis of
gender. Morales-Santana v. Lynch, — F.3d —, 2015 WL 4097296, at *12 (2d Cir.
July 8, 2015). The question is one of first impression in the Fifth Circuit.
A.

Standard of Scrutiny
While the Government’s brief defends the challenged statute primarily

on the basis that it satisfies the heightened scrutiny given to laws that discriminate

4

The Supreme Court granted certiorari and affirmed by an equally divided court,
United States v. Flores-Villar, 131 S. Ct. 2312, 2313 (2011), rendering the decision
non-precedential, United States v. Pink, 315 U.S. 203, 216 (1942).
13

on the basis of gender, it also argues, in a footnote, that “the deferential review
normally applied to congressional actions in the naturalization context should
apply here.” (Dkt. # 17 at 4 n.4.) Its latest supplemental brief also argues that the
Court should apply rational basis review to Petitioner’s claims. (Dkt. # 28 at 2.)
The Court will therefore first consider the proper level of scrutiny to apply to
Petitioner’s equal protection claim.
In general, courts apply heightened scrutiny to laws that discriminate
on the basis of gender. United States v. Virginia, 518 U.S. 515, 531–33 (1996).
Such “skeptical scrutiny of official action denying rights or opportunities based on
sex” reflects the nation’s “‘long and unfortunate history of sex discrimination.’”
Id. at 531 (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973)). In light of
this history, “[p]arties who seek to defend gender-based government action must
demonstrate an exceedingly persuasive justification for that action.” Id.
To withstand equal protection review, the State must show that “the
challenged classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of
those objectives.” Id. at 533. “The burden of justification is demanding and rests
entirely on the State.” Id. Additionally, “[t]he justification must be genuine, not
hypothesized or invented post hoc in response to litigation. And it must not rely on
overbroad generalizations about the different talents, capacities, or preferences of
14

males and females.” Id. “[T]he mere recitation of a benign, compensatory purpose
is not an automatic shield which protects against any inquiry into the actual
purposes underlying a statutory scheme.” Weinberger v. Wiesenfeld, 420 U.S.
636, 648 (1975).
The Government’s argument for a more lenient standard of scrutiny
rests on the principle of judicial deference to government action related to
immigration and naturalization. The federal government “has broad, undoubted
power over the subject of immigration and the status of aliens.” Arizona v. United
States, 132 S. Ct. 2492, 2498 (2012). As the Supreme Court stated in Fiallo v.
Bell, “[o]ur cases have long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.” 430 U.S. 787, 792 (1977)
(quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). “[O]ver no
conceivable subject is the legislative power of Congress more complete than it is
over the admission of aliens.” Id. As a result, the “scope of judicial inquiry into
immigration legislation” is “limited.” Id.
In Nguyen v. INS, 533 U.S. 53 (2001), the Supreme Court assumed,
without deciding, that heightened scrutiny applied to an equal protection challenge
of § 1409(a), which requires that a citizen father take affirmative steps not required
of citizen mothers in order to transmit citizenship to a nonmarital child born
15

abroad. Id. at 61. In the appeal below, however, the Fifth Circuit held that Fiallo’s
lower standard of review did not apply. Nguyen v. INS, 208 F.3d 528, 534–35
(5th Cir. 2000), aff’d, 533 U.S. 53 (2001). The Fifth Circuit found that “there were
significant differences between [§ 1409] which is challenged in the present case,
and the INA statute challenged in Fiallo.” Id. at 535. In particular, “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.” Id. While
recognizing that it had applied Fiallo in prior cases involving the claims of aliens,
the Fifth Circuit found such cases distinguishable from the petitioner’s claim of
citizenship and applied heightened scrutiny. Id.; cf. Malagon de Fuentes v.
Gonzales, 462 F.3d 498, 503–04 (5th Cir. 2006) (applying rational basis review to
a claim attacking “a congressionally-drawn distinction among aliens”); Rodriguez
v. INS, 9 F.3d 408, 410 (5th Cir. 1993) (applying Fiallo limited review standard to
alien’s claim seeking waiver of deportation).
Because the Supreme Court’s Nguyen opinion affirmed the Fifth
Circuit’s decision, the Fifth Circuit’s holding regarding the applicable standard of
scrutiny remains binding on this Court. As in Nguyen, Petitioner’s claim here is
that he is a citizen as of the time of his birth. The challenged statute deals not with
aliens’ claims for immigration preferences, but with how citizen parents may
confer citizenship on nonmarital children born abroad. The Court therefore finds
16

that the Fifth Circuit’s holding in Nguyen requires that heightened scrutiny be
applied to Petitioner’s claims.
The Court also notes that the Second Circuit held that heightened
scrutiny applied to an equal protection challenge to the physical presence
requirements in question here, rejecting the Government’s argument that Fiallo
limits the court’s inquiry to rational basis scrutiny. Morales-Santana, 2015 WL
4097296, at *5. The Second Circuit, as did the Fifth Circuit in Nguyen,
distinguished Fiallo on the basis that the laws challenged in that case governed the
admission of non-citizens to the United States through a citizen parent. While “the
children’s alienage [in Fiallo] implicated Congress’s ‘exceptionally broad power’
to admit or remove non-citizens,” the petitioner in Morales-Santana claimed
“pre-existing citizenship at birth,” and thus raised “no similar issue of alienage that
would trigger special deference.” Id.
In addition to finding that the Fifth Circuit’s holding in Nguyen
governs the applicable standard of scrutiny here, the Court further finds its
analysis, and that of the Second Circuit, to be persuasive. Petitioner claims that
under a constitutional interpretation of the challenged statutes, he is a citizen as of
the date of his birth. He is not challenging the denial of an application for
immigration status or any other government action that could be said to implicate

17

the congressional “power to admit or exclude foreigners” at issue in Fiallo. 5 430
U.S. at 796 n.6. In its discussion of the scope of judicial review in cases

5

The Government argues that Petitioner’s claim for citizenship is one of
naturalization, and that Congress’s sole authority to “establish a uniform Rule of
Naturalization” under article I, section 8, clause 4 of the Constitution requires that
the Court grant deference to the conditions for naturalization set by Congress. The
Government supplies no authority for its assertion, however, that “the power to
confer or deny citizenship to individuals born abroad . . . is also an aspect of the
power to exclude aliens.”
Contrary to the Government’s position, Congress did not view the conferral
of citizenship by an unmarried citizen parent on a child born abroad to be a
naturalization. The parallel provision of the Nationality Act of 1940 appeared in
Chapter II of that Act, titled “Nationality at Birth.” § 205, 4 Stat. at 1138,
1139–40. The provisions pertaining to naturalization, by contrast, appeared in
Chapter III: “Nationality Through Naturalization.” Id. at 1140. Similarly, the
parallel provision of the Immigration and Nationality Act of 1952 appeared in
Chapter 1 of Title III, titled “Nationality at Birth and by Collective Naturalization.”
§ 309, 66 Stat. at 238–39. (The “collective naturalization” provisions conferred
citizenship on certain persons born in the Canal Zone and the Republic of Panama,
Puerto Rico, Alaska, Hawaii, the Virgin Islands, and Guam. Id. §§ 302–07, 66
Stat. at 236–38.) The provisions pertaining to naturalization generally were set out
in Chapter III, “Nationality Through Naturalization.” Id. at 249.
The relevant provisions at issue here thus did not appear in the respective
chapters of the 1940 and 1952 statutes setting out the provisions for naturalization,
but in the chapters providing for “Nationality at Birth.” Additionally, § 205 of the
1940 Act and § 209 of the 1952 Act explicitly incorporate parts of §§ 201 and 301,
respectively, which set out who “shall be nationals and citizens of the United
States at birth.” § 201, 54 Stat. at 1138; § 301, 66 Stat. at 235. The statutory
structure of both Acts thus indicates that Congress considered conferral of
citizenship by an unmarried citizen parent to a child born abroad to be the conferral
of citizenship at birth, not a naturalization.
The Supreme Court has reached the same conclusion. In Rogers v. Bellei,
the Court noted that the foreign-born child of a married citizen mother “acquired
citizenship at his birth.” 401 U.S. at 818. Significantly, the applicable statute at
the time also required that the foreign-born child subsequently live in the United
States for five years between the ages of 14 and 28. Id. at 816. The Court
nevertheless recognized that the child was a citizen at birth under the statute,
18

concerning aliens, the Fiallo court expressly distinguished laws that apply to aliens
from those that apply to citizens, noting that “in the exercise of its broad power of
immigration and naturalization, Congress regularly makes rules that would be
unacceptable if applied to citizens.” Id. at 792 (quoting Mathews v. Diaz, 426 U.S.
67, 80 (1976)). The laws challenged here apply to citizens, setting out the
requirements for how citizen mothers and citizen fathers may confer citizenship on
their nonmarital, foreign-born children where the other parent is a non-citizen. The
gender-based scheme provided for under the statutes must therefore satisfy the full
rigor of the Constitution’s guarantee of equal protection, and can be upheld only if
the Government can show that it is substantially related to an important
governmental interest.
B.

Governmental Interests and Tailoring
In defense of the statutes at issue, the Government argues that the

gender-based difference in the physical presence requirements for transfer of
citizenship by unmarried parents to a foreign-born child are substantially related to
the important governmental interests of preventing statelessness among children
born abroad and developing a tie between the child, the citizen parent, and this
country. The Court will consider each of these interests in turn.
characterizing his citizenship as “presumptive citizenship” subject to a condition
subsequent. Id. at 835. The Court is therefore satisfied that Petitioner’s citizenship
claim here does not implicate Congress’s powers over naturalization.
19

1.

Preventing Statelessness

The Government argues that the statutes at issue advance the
important government interest of preventing statelessness. The potential problem
of statelessness arises out of the interaction of the United States’ rule of jus solis,
which assigns citizenship based on the place of birth (except as provided for by
statute), and the rule of jus sanguinis adopted by many other nations, under which
citizenship is acquired by blood relationship with a parent. See Rogers v. Bellei,
401 U.S. 815, 828 (1971) (noting that the United States follows the rule of jus solis
except as modified by statute); Brief for Respondent at 17–18, Nguyen, 533 U.S.
53 (No. 99-2071). A child born out of wedlock abroad would be stateless if she
was born in a jus sanguinis country and was unable to inherit the citizenship of
either of her parents—for example, where a foreign country provided inheritance
of citizenship from the mother, and no U.S. statute provided for transmission of
citizenship by a citizen mother to a child born abroad. See Morales-Santana, 2015
WL 4097296, at *9; Runnett v. Shultz, 901 F.2d 782, 787 (9th Cir. 1990).
The Supreme Court has recognized the harsh consequences of
statelessness, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160–61 (1967);
Trop v. Dulles, 356 U.S. 86, 101–02 (1958), and both the Ninth and Second
Circuits have recognized the prevention of statelessness as an important
government interest in light of this precedent, Flores-Villar, 536 at 996;
20

Morales-Santana, 2015 WL 4097296, at *9. Whether the prevention of
statelessness was in fact Congress’s purpose in establishing the different physical
presence requirements at issue here, however, is doubtful. As noted above, “the
court must inquire into the actual purposes of the discrimination, for ‘a tenable
justification must describe actual state purposes, not rationalizations for actions in
fact differently grounded.’” Nguyen, 533 U.S. at 76 (O’Connor, J., dissenting)
(quoting Virginia, 515 U.S. at 533). The Government’s argument with regard to
statelessness relies entirely on the Ninth Circuit’s opinion in Flores-Villar, which
appears to assume without considering whether preventing statelessness in fact
motivated the physical presence requirement enacted by Congress. See
Flores-Villar, 536 F.3d at 996–97.
The provisions in question were first enacted in 1940, and marked the
first time that Congress had differentiated between children born out of wedlock
and children born to married parents in its jus sanguinis statutes. Nationality Act
of 1940, ch. 876, § 205, 54 Stat. 1137, 1139–40; Brief for Professors of History,
Political Science, and Law as Amici Curiae Supporting Petitioner at 21,
Flores-Villar, 131 S. Ct. 2312 (2011) (No. 09-5801) (“Professors’ Amicus Brief”);
Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal
Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2136 n.2 (2014).
Section 205 of the Nationality Act of 1940 (“1940 Act”) provided that, in the case
21

of a child born abroad to parents of whom only was a citizen, “citizen fathers and
married citizen mothers could transmit citizenship to their child born abroad only
after satisfying an age-calibrated ten-year physical presence requirement, but . . .
unmarried citizen mothers could confer citizenship if they had resided in the
United States at any point prior to the child’s birth.” Morales-Santana, 2015 WL
4097296, at *10 (emphasis in original); § 205, 54 Stat. at 1139–40 (incorporating
§ 201(g)). The Immigration and Nationality Act of 1952 (“1952 Act”) retained
this basic structure, but added an additional requirement that unmarried mothers
have been continuously physically present in the United States for one year prior to
the child’s birth. Immigration and Nationality Act of 1952, § 309(c), 66 Stat. 163,
238–39.
The purpose of these statutes is best determined in light of their
historical contexts. See United States v. Zacks, 375 U.S. 59, 62 (1963). From
1790 until 1934, foreign-born children acquired the citizenship of their father.
Professors’ Amicus Brief at 7 (citing Act of Feb. 10, 1855, ch. 71, § 1, 10 Stat.
604, 604; Act of Apr. 14, 1802, ch. 28, § 4, 2 Stat. 153, 155; Act of Jan. 29, 1795,
ch. 20, § 3, 1 Stat. 414, 415; Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 104).
Citizenship law throughout this period codified “the well-established norm of male
headship in the marital family,” under which “the husband determined the political
and cultural character of his dependents—wife and children included.” Id. at 7–9.
22

Women lacked the ability to transmit their citizenship to their children, and for
some of this period were even subject, by court interpretation and later by statute,
to the loss of their American citizenship upon marriage to a foreign husband. Id. at
11–13; Collins, 123 Yale L.J. at 2156; Candice Bredbenner, A Nationality of Her
Own: Women, Marriage, and the Law of Citizenship 45–58 (1998)
(“Bredbenner”); see also Miller v. Albright, 523 U.S. 420, 463–68 (Ginsburg, J.,
dissenting).
The rule of paternal transfer of citizenship did not apply, however, to
children born outside of marriage. While foreign-born children of married and
unmarried parents were not distinguished by statute prior to the 1940 Act, courts
and government agencies interpreted the statutes to refuse citizenship to nonmarital
children born abroad to citizen fathers. 6 Collins, 123 Yale L.J. at 1258–60,
2182–83; Professors’ Amicus Brief at 21. This interpretation in part reflected
prevailing domestic relations law, which “generally insulated men from their
nonmarital children by disfavoring those children’s claims to property and status”
and “resisted recognition of the father-child relationship outside of marriage.”
Professors’ Amicus Brief at 20–21. Professor Collins persuasively argues that this
interpretation was also used as a facially neutral tool of racial exclusion. See

6

The State Department’s practice provided an exception for nonmarital children
born abroad who were legitimated by the citizen father during the child’s minority.
Collins, 123 Yale L.J. at 2183–84; Professors’ Amicus Brief at 22.
23

Collins, 123 Yale L.J. at 1258–88. In the historical context of expanding American
empire, increasing Asian immigration, and anti-miscegenation laws, “restriction of
father-child citizenship transmission outside the marital family regularly operated
to exclude nonwhite children from citizenship.” Id. at 2158.
By contrast, judicial and administrative practice recognized the
citizenship of nonmarital children born abroad to citizen mothers even before
Congress provided for citizenship transfer by mothers to their children in 1934. Id.
at 1258–60, 2182; Morales-Santana, 2015 WL 4097296, at *10 (quoting To Revise
and Codify the Nationality Laws of the United States Into a Comprehensive
Nationality Code: Hearing Before the H. Comm. on Immigration and
Naturalization, 76th Cong. 431 (1945)); Professors’ Amicus Brief at 28–29. The
recognition of the mother-child relationship in the nonmarital context was a
reflection of American common law, which recognized the mother-child
relationship outside of marriage under the principle that “the mother in such a case
stands in the place of the father,” itself founded on the presumption that the mother
was the natural caregiver. Collins, 123 Yale L.J. at 2200–01; Professors’ Amicus
Brief at 27–29 & n.11; see also Nguyen, 533 U.S. at 91–92 (O’Connor, J.,
dissenting) (discussing history of legitimation requirement first enacted by 1940
Act); Miller, 523 U.S. at 463 (Ginsburg, J., dissenting). Additionally, “[t]he
historical sources suggest that administrators’ recognition of mother-child
24

citizenship transmission outside of marriage was animated by the powerful
maternalist norms that shaped early twentieth-century social policy,” which were
“premised on the view that mothers were the natural caregivers of children.” 7
Collins, 123 Yale L.J. at 2201.
The 1940 Act was originally drafted by a presidentially appointed
interdepartmental committee of officials from the Departments of State, Labor
(which housed the Bureau of Immigration), and Justice. Id. at 2189, 2190–91. The
drafters incorporated the existing administrative practice recognizing the
citizenship of nonmarital children born to citizen mothers and strictly limiting the
transmission of citizenship to children born to citizen fathers in the proposed law.
Id. at 2198, 2199–2200, 2205 (citing H.R. Comm. on Immigration &
Naturalization, 76th Cong., Report Proposing an Revision and Codification of the
Nationality Laws of the United States, Part One: Proposed Code with Explanatory
Comments (Comm. Print 1939) (“Proposed Code”) at 17–18); Professors’ Amicus
Brief at 25–26, 28–29. As noted by Professor Collins, “the drafters of the
Proposed Code explained the recognition of unwed mothers’ foreign-born children
7

The maternalist justifications “largely originated in the practices of front-line
administrators in the Bureau of Immigration” dealing with crossings of the
Canadian-American border by mothers and their children. Collins, Yale L.J. at
2201–04. “Memo after memo explaining and defending the cross-border
agreement [between the United States and Canada] reveals U.S. officials’ nearly
uniform view that it was only practical to keep mothers and their nonmarital
children [born abroad] together, as mothers were the presumed caretakers of such
children.” Id. at 2202–03.
25

as citizens using the formalized (and gender-based) logic of the common law: it
was premised on the longstanding domestic relations law principle that ‘the mother
in such a case stands in the place of the father.’” Collins, 123 Yale L.J. at 2200
(quoting Proposed Code at 18).
The exclusionary immigration policies of the first nearly two-thirds of
the 20th century are also essential to a full understanding of the historical context
of the 1940 Act. Calls to allow women to transmit their citizenship to their
foreign-born children were met with fears from administration officials and
members of Congress that such a policy would result in an influx of immigrants
who were otherwise excluded under racially-based immigration statutes. Id. at
2192–96; Bredbenner at 232–33. The requirement that a child born outside of the
United States to one citizen parent live in the United States for five years between
the ages of 13 and 21, enacted in the 1934 law that gave American mothers the
ability to transmit citizenship and retained in the 1940 statute, Act of May 24,
1934, ch. 344, 48 Stat. 797; Nationality Act of 1940, ch. 876, § 201(g), 54 Stat.
1137, 1139, was intended by at least some legislators to exclude from citizenship
“children of citizens who were otherwise racially excludable.” Collins, 123 Yale
L.J. at 2194 (quoting the colloquy of Senators King and Copeland, 78 Cong. Rec.
8471 (1934)). Similarly, the ten-year residency requirement in the 1940 Act was
explained by a State Department official, in testimony before Congress on the
26

legislation, as an improvement over the 1934 law because “[i]t does not result in
spreading citizenship over the face of the earth quite so much . . . among aliens,”
with explicit reference to citizens of “Chinese or Mexican descent.” To Revise and
Codify the Nationality Laws of the United States into a Comprehensive Nationality
Code: Hearing Before the H. Comm. on Immigration and Naturalization, 76th
Cong. 40 (1945).
There is thus evidence that the differential treatment of citizen
mothers and fathers with respect to the conferral of citizenship on nonmarital
children born abroad stemmed from traditional gender roles embodied in American
common law, the maternalist norms of policymakers, and a nativist desire to keep
derivative citizenship from circumventing racially restrictive immigration policies.
The Court has found no evidence, by contrast, that this gender classification was
motivated by preventing statelessness. The Second Circuit, in considering whether
preventing statelessness was a genuine justification for the different physical
presence requirements at issue here, found that “[n]either the congressional
hearings nor the relevant congressional reports concerning the 1940 Act contain
any reference to the problem of statelessness for children born abroad,” and that
“[t]he congressional hearings concerning the 1952 Act are similarly silent about
statelessness as a driving concern.” Morales-Santana, 2015 WL 4097296, at *10.
While the issue of statelessness was raised with reference to other provisions of the
27

1940 and 1952 legislation, there is no evidence that is was a concern relative to the
physical presence requirements for unmarried citizen mothers and fathers. See
Proposed Code at 20 (noting the prevention of statelessness as the purpose of a
provision conferring U.S. nationality on children of unknown parentage found in
an outlying possession of the United States); S. Rep. No. 82-1137, at 39 (1952)
(explaining, with reference to statelessness, the elimination of a provision
conditioning a citizen mother’s ability to transmit her citizenship to a nonmarital
child born abroad on the father’s failure to legitimate the child before the child’s
18th birthday); Collins, 123 Yale L.J. 2205 n.283 (“[I]n the many hundreds of
pre-1940 administrative memos I have read that defend or explain recognition of
the nonmarital foreign-born children of American mothers as citizens, I have
identified exactly one . . . that mentions the risk of statelessness . . . as a concern.”).
The Government has therefore not met its burden of showing that
preventing statelessness was a genuine justification for the challenged
classification. Further, even if the prevention of statelessness did motivate the
different treatment of physical presence requirements for citizen mothers and
fathers, the Government has not shown that the classification is substantially
related to that interest. “[T]he availability of sex-neutral alternatives to a sex-based
classification is often highly probative of the validity of the classification.”
Nguyen, 533 U.S. at 78 (O’Connor, J., dissenting); see also Wengler v. Druggists
28

Mut. Ins. Co., 446 U.S. 142, 151 (1980) (striking down a gender-based
classification where a gender-neutral approach would advance the goals of the
statutory scheme equally well); Orr v. Orr, 440 U.S. 268, 281–83 (1979) (same).
Here, gender-neutral alternatives would equally, if not better, serve the goal of
preventing statelessness in nonmarital children born abroad.
During the time leading up to the 1940 Act, statelessness was
recognized as a potential problem for the nonmarital children of both citizen
mothers and citizen fathers. Professors’ Amicus Brief at 33–36 (citing Catheryn
Seckler-Hudson, Statelessness: With Special Reference to the United States
(1934)).8 In 1933, Secretary of State Cordell Hull proposed legislation to the
chairman of the relevant House committee that would have granted citizenship to a
child born abroad out of wedlock to either an American father or an American
mother if there was “no other legal parent under the law of the place of birth,” a
gender-neutral solution to the risk of statelessness for children of citizen mothers
and citizen fathers. Morales-Santana, 2015 WL 4097296, at *11 (quoting Letter
from Sec’y Hull to Chairman Dickstein (Mar. 27, 1933)). In the lead-up to what
would become the 1934 Act, Congress was twice presented with gender-neutral
bills that would have addressed the problem of statelessness with respect to
8

Seckler-Hudson’s work was later cited by the Supreme Court in its discussions of
statelessness in Mendoza-Martinez, 372 U.S. at 161 n.15, and Trop, 356 U.S. at
102 n.35. See also Professors’ Amicus Brief at 33 n.17.
29

mothers as well as fathers. See Amendment to the Women’s Citizenship Act of
1922, and for Other Purposes: Hearings on H.R. 14,684, H.R. 14,685, and H.R.
16303 Before the H. Comm. on Naturalization and Immigration, 71st Cong. 1
(1931); Relating to Naturalization and Citizenship Status of Certain Children of
Mothers Who are Citizens of the United States, and Relating to the Removal of
Certain Distinctions in Matters of Nationality: Hearings on H.R. 5489 Before the
H. Comm. on Naturalization and Immigration, 72d Cong. 1 (1932). 9
Congress and administration officials thus do not appear to have
viewed the risk of statelessness as especially acute in the case of children born
abroad to citizen mothers as opposed to citizen fathers. The Government has
presented no evidence that statelessness was in fact a greater concern in the context
of children born abroad to citizen mothers. Cf. Brief for Scholars on Statelessness
as Amici Curiae Supporting Petitioner 8–15, 22–28, Flores-Villar, 131 S. Ct. 2312
(No. 09-5801) (“There is no support for the government’s assertion that the risk of
statelessness for non-marital children of U.S. mothers was or is much higher than
for U.S. fathers of non-marital children born abroad, or indeed any higher at all.”).

9

Both bills included language to the effect that “Any child, whether legitimate or
illegitimate, born out of the limits and jurisdiction of the United States, whose
father or mother may be at the time of the birth of such child a citizen of the United
States, is declared to be a citizen of the United States; but the right of citizenship
shall not descend to any child whose father or mother had never resided in the
United States previous to the birth of the child.” H.R. 14,684, 71st Cong. § 3
(1930); see also H.R. 5489, 72d Cong. (1931).
30

Even had this been the case, the Court can discern no reason why a gender-neutral
alternative could not have addressed this concern as well, or indeed better, than the
gender-based requirement. As recognized at the time, a nonmarital child born to a
citizen father in a jus sanguinis country in which citizenship is acquired through
the father would be stateless if the child could not acquire the father’s American
citizenship. Professors’ Amicus Brief at 34–35 (citing Seckler-Hudson at 221,
224–25). Applying § 1409(c)’s physical presence requirement for unmarried
citizen mothers to unmarried citizen fathers would thus advance the goal of
preventing statelessness of citizen mothers’ children equally well while further
advancing that goal with respect to the children of citizen fathers.
Given the availability of gender-neutral alternatives that would
advance the goal of preventing statelessness equally well or better than the
gender-based physical presence requirements at issue here, the Court finds that the
physical presence requirements are not substantially related to the achievement of
the objective of preventing statelessness in children born abroad. As a result, even
if the prevention of statelessness did in fact motivate Congress’s passage of the
physical presence requirements for citizen mothers and fathers to transmit their
citizenship to nonmarital children born abroad, that interest cannot support the
requirements’ discriminatory treatment of unmarried citizen mothers and fathers.

31

2.

Ensuring a Connection to this Country

The Government also argues that the different physical presence
requirements applied to citizen mothers and fathers is substantially related to the
interest in “ensur[ing] some tie between this country and one who seeks
citizenship.” (Dkt. # 17 at 7 (quoting Nguyen, 533 U.S. at 68).) The Second
Circuit found, and Petitioner has not contested here, that ensuring a sufficient
connection between foreign-born children of parents of different nationalities and
the United States is important and was actually contemplated by Congress in
requiring some period of physical presence before a citizen parent could confer
citizenship on a child born abroad. See Morales-Santana, 2015 WL 4097296, at
*7.
The Second Circuit, in analyzing whether the different residency
requirements for unmarried fathers and mothers was substantially related to this
interest, could “see no reason[] that unwed fathers need more time than unwed
mothers in the United States prior their child’s birth in order to assimilate the
values that the statute seeks to ensure are passed on to citizen children born
abroad.” Morales-Santana, 2015 WL 4097296, at *7. This Court wholly agrees.
The Court can think of no rational basis for the idea that an unmarried citizen
father needs more time—indeed, ten times as many years—to absorb American
values than an unmarried citizen mother. The Court is equally unable to find a
32

reason why an unmarried citizen father requires five years of U.S. residence after
the age of 14 to sufficiently assimilate American values, while an unmarried
citizen mother’s absorption of American values is considered sufficient even if her
one year of residence occurred in her infancy. 10
As it did before the Second Circuit, the Government here cites
Nguyen as support for the proposition that the gender-based physical presence
requirements are substantially related to ensuring an adequate connection between
the child and this country. In Nguyen, the Supreme Court rejected a challenge to
the Immigration and Nationality Act’s requirement that an unwed citizen father
affirmatively legitimate a child born abroad, declare his paternity under oath, or
obtain a court order of paternity in order to transmit his citizenship to the child.
Nguyen, 533 U.S. at 62. The Court recognized two important interests that
supported the legitimation requirement: ensuring the existence of a biological
parent-child relationship, and ensuring “that the child and the citizen parent have
some demonstrated opportunity or potential to develop” a meaningful relationship.
Id. at 62, 64–65.
As the Second Circuit explained, neither of these interests applies to
the physical presence requirements at issue here. First, the physical presence
10

The Court notes that while the Ninth Circuit found that the residence differential
furthers the objective of developing a tie between the child, his or her father, and
this country, it provided no explanation for how it did so. Flores-Villar, 536 U.S.
at 997.
33

requirements do nothing to ensure that a biological parent–child relationship exists;
that function is fulfilled by the separate requirement that unwed citizen fathers
legitimate their foreign-born children. See § 1409(a) (1974). A father’s physical
presence in the United States for ten years instead of just one prior to his child’s
birth “would have provided no additional assurance that a biological tie existed.”
Morales-Santana, 2015 WL 4097296, at *7. Second, the physical presence
requirement similarly does nothing to ensure that the child and the citizen father
have an opportunity to develop a meaningful relationship. The length of time a
citizen father spends in the United States prior to his child’s birth abroad has no
effect on the father’s subsequent opportunity to establish a relationship with the
child. Requiring Villegas, Jr. to reside in the United States for ten years, including
five years after his 14th birthday, rather than one year “would have done nothing to
further ensure that an opportunity for such a relationship existed.” Id.
The analysis of whether the different physical presence requirements
for unwed citizen mothers and fathers is substantially related to the interest in
ensuring the opportunity to develop a meaningful relationship between the citizen
parent and child is thus not governed by the Supreme Court’s analysis in Nguyen.
As noted by the Second Circuit, “unwed mothers and fathers are similarly situated
with respect to how long they should be present in the United States . . . prior to the
child’s birth in order to have assimilated citizenship-related values to transmit to
34

the child.” Morales-Santana, 2015 WL 4097296, at *8 (emphasis omitted). The
Court therefore finds that the interest in ensuring the opportunity to develop a
meaningful relationship cannot support the gender-based difference in physical
presence requirements for unwed citizen mothers and fathers. 11 Lacking a
substantial relationship to an important government interest, the different physical
presence requirements violate the Fifth Amendment’s guarantee of equal
protection.12
C.

Remedy
Having found that the different physical presence requirements for

unmarried citizen mothers and fathers in § 1409(c) and (a), respectively, violate

11

In its latest supplemental briefing, the Government suggests that § 1409(c) also
furthers the important governmental interest of ensuring that a foreign-born child
would not be separated from its citizen mother, asserting that a citizen mother
would otherwise have had to choose between returning to the United States
without her child and remaining abroad with the child. (Dkt. # 28 at 7.) First, the
Government has provided no evidence that Congress actually had such a
consideration in mind when drafting the statute. Second, the Government has not
explained why an unwed citizen mother would be forced to make such a choice.
At the time of Petitioner’s birth, the foreign-born child of a citizen mother could be
admitted to the United States as a permanent resident, and the parent could then
petition for the child’s naturalization. See 8 U.S.C. § 1433(a) (1974).

12

The current form of § 1409, which retains the one-year continuous presence
requirement for unwed citizen mothers and requires that unwed citizen fathers be
physically present in the United States for five years, two after attaining the age of
fourteen, 8 U.S.C. §§ 1409(a) & (c), 1401(g), is not before the Court. The Court
notes, however, that the current statute, insofar as it requires unmarried fathers to
meet a more burdensome physical presence requirement than unmarried citizen
mothers, suffers from the same constitutional infirmity as its predecessor.
35

equal protection, the Court must determine the proper remedy. “[W]hen the right
invoked is that of equal treatment, the remedy is a mandate of equal treatment, a
result that can be accomplished by withdrawal of benefits from the favored class as
well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465
U.S. 728, 740 (1984) (quoting Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S.
239, 247 (1931)). The remedy chosen must be consistent with congressional intent
in enacting the law in question, and “should therefore measure the intensity of
commitment to the residual policy and consider the degree of potential disruption
of the statutory scheme that would occur by extension as opposed to abrogation.”
Id. at 739 n.5 (quoting Welsh v. United States, 398 U.S. 333, 365 (1970) (Harlan,
J., concurring in the result)). Provided that it does not violate the intent of
Congress, “ordinarily, extension, rather than nullification, is the proper
course . . . .” Id. (quoting Califano v. Westcott, 443 U.S. 76, 91 (1979)).
In its analysis of the proper remedy, the Second Circuit set out three
options: (1) striking § 1409(a) and (c) entirely; (2) severing the one-year
continuous presence requirement of § 1409(c) and requiring unwed citizen parents
to satisfy the ten-year requirement if the other parent lacks citizenship; or
(3) severing the ten-year requirement of § 1401(a)(7) as incorporated by § 1409(a)
and requiring every unwed citizen parent to satisfy the one-year continuous
presence requirement if the other parent is not a citizen. Morales-Santana, 2015
36

WL 4097296, at *12. The first option, which is not advocated by either Petitioner
or the Government, is foreclosed by the 1952 Act’s severability provision, which
provides that “[i]f any particular provision of this Act, or the application thereof to
any person or circumstance, is held invalid, the remainder of the Act . . . shall not
be affected thereby.” § 406, 66 Stat. at 281. Given Congress’s intent that an
invalid provision not affect other provisions of the Act, and because § 1409(a) and
(c) violate equal protection only in combination, only one should be severed. See
Morales-Santana, 2015 WL 4097296, at *12; see also United States v.
Cervantes-Nava, 281 F.3d 501, 505 n.11 (5th Cir. 2002) (“Courts should select the
severance option most compatible with the statute’s original text and structure,
because severance is based on the assumption that Congress would have enacted
the remainder of the law absent the severed portion.”).
The Government argues for the second option, contending that the
proper remedy is to apply the longer physical presence requirements applicable to
unwed citizen fathers to unwed citizen mothers. (Dkt. # 17 at 12.) In support of
this position, the Government argues that the one-year continuous presence
requirement for unmarried citizen mothers is an exception to the ten-year
requirement, applicable to married mothers, married fathers, and unmarried fathers,
that must otherwise be fulfilled to transfer citizenship to a child born abroad to

37

parents of whom only one is a citizen. See §§ 1401(a)(7), 1409(a), (c). 13
According to the Government, extending the one-year requirement for unmarried
citizen mothers to unmarried citizen fathers would allow the exception to swallow
the rule.
While the Court would not characterize an extension of the one-year
presence requirement to unmarried fathers as “swallowing the rule,” given that the
ten-year requirement would continue to apply to married mothers and fathers, the
Government’s argument is not without merit. The Court is not persuaded,
however, that Congress would have preferred to apply the ten-year presence
requirement to all unmarried citizen parents rather than extend the one-year
continuous presence requirement to unmarried citizen fathers. As noted by the
Second Circuit, “the ten-year requirement for fathers and married mothers imposed
by Congress in 1940 appears to have represented a significant departure from
long-established historical practice.” Morales-Santana, 2015 WL 4097296, at *12.
13

The Government also argues that Congress has continued to apply the longer
physical presence requirement applicable to married citizen parents of children
born abroad to unmarried citizen fathers, citing the 1986 amendments to the
Immigration and Nationality Act and various legislation proposed but not adopted
thereafter. (Dkt. # 17 at 13.) The relevant inquiry, however, is Congress’s intent
in enacting the provisions and statutory scheme at issue in this case—the
Immigration and Nationality Act of 1952. See United States v. New York, 505
U.S. 144, 186 (1992) (framing the question of severability as whether the
legislature that enacted the statute would have enacted the remaining provisions
absent the provision subsequently found invalid); Cervantes-Nava, 281 F.3d at 505
n.11 (“Courts should select the severance option most compatible with the statute’s
original text and structure . . . .” (emphasis added)).
38

Until 1940, children born to one citizen parent and one alien parent were
recognized as citizens if the citizen parent had resided in the United States for any
length of time. 14 See Rogers v. Bellei, 401 U.S. 815, 823–26 (1971) (reviewing
the history of the derivative citizenship statutes).
The ten-year physical presence requirement was created for the first
time by the 1940 Act, and required that five of those years occur after the age of
16. Nationality Act of 1940, § 201(g), 54 Stat. at 1139. The 1952 Act added the
one-year continuous presence requirement for unmarried citizen mothers, “a
relatively minor change in the baseline minimal residency requirement applicable
to all men and women prior to 1940” as well as to unmarried citizen mothers from
1940 to 1952. Morales-Santana, 2015 WL 4097296, at *12. Compare Nationality
Act of 1940, § 201(g), 54 Stat. at 1139, with Immigration and Nationality Act of
1952, § 309(c), 66 Stat. at 238–39. The 1952 Act also changed the age-based
portion of the ten-year requirement so that the five years were counted from the
age of 14, extending the possibility of citizenship to children born to 19-year-old
unwed citizen fathers. § 301(a)(7), 66 Stat. at 236. It did, however, retain the

14

As noted above, citizen mothers were unable to transmit their citizenship until
1934. Under the 1934 Act, however, a citizen mother was able to transmit her
citizenship to a child born abroad if she had resided in the United States for any
duration. Act of May 24, 1934, ch. 344, § 1993, 48 Stat. 797; see also Bellei, 401
U.S. at 823–26; Morales-Santana, 2015 WL 4097296, at *12.
39

ten-year residency requirement for married citizen parents and unmarried citizen
fathers. 15 Id.
The history of the provisions in question thus shows that while the
residency requirement for transmission of citizenship to foreign-born children was
satisfied by residence of any duration for much of the nation’s history, Congress in
1952 chose to retain the ten-year requirement first provided for in the 1940 Act.
The Second Circuit’s examination of Congress’s intent with respect to the physical
presence requirements of the 1952 Act found that “[n]either the text nor the
legislative history of the 1952 Act is especially helpful or clear.” Morales-Santana,
2015 WL 4097296, at *13. Having conducted its own review of the legislative
history of the 1952 Act, this Court agrees. The House Report on the bill that
became law noted only, with respect to the ten-year physical presence requirement,
that the proposed legislation allowed service in the Armed Forces to count toward
physical presence in light of the “many members of our Armed Forces serving
abroad who have married alien spouses and have children born in foreign
countries.” H.R. Rep. No. 82-1365, at 76 (1952). The Senate Report similarly
offered no explanation of the ten-year physical presence requirement beyond the
computation of presence for Armed Forces serving abroad. S. Rep. No. 82-1137,
15

The 1952 Act further specified that the ten-year requirement was one of physical
presence. § 301(a)(7), 66 Stat. at 236. The 1940 Act had used the term
“residence,” which was viewed as less precise. § 201(g), 54 Stat. at 1139; S. Rep.
81-1515, at 713 (1950).
40

at 39 (1952). The report of the Senate Judiciary Committee on its comprehensive
study of the nation’s immigration laws recommended the physical presence
provisions that were subsequently enacted, but its only commentary on the relevant
provisions was to note that the residence requirements for citizen parents of
children born abroad “are confusing and difficult to administer and interpret.” S.
Rep. No. 81-1515, at 713 (1950). The hearings on the legislation provide no
additional insight. See Revision of Immigration, Naturalization, and Nationality
Laws: Joint Hearings before the Subcomms. of the Comms. on the Judiciary, 82d
Cong. (1951).
The Court next looks to the legislative history of the 1940 Act, whose
physical presence provisions were “carrie[d] forward substantially” by the 1952
Act. H.R. Rep. No. 82-1365, at 76 (1952). The Senate Report’s explanation of the
legislation, under the heading “Further Restrictive Provisions,” states:
Under present law a child born outside of the limits and jurisdiction of
the United States of one citizen and one alien parent becomes a citizen
at birth, provided the citizen parent has resided in the United States
before the birth of the child. No prescribed period of residence in this
country of the citizen parent is fixed. Under the code the citizen
parent must have resided in the United States preceding the child’s
birth for at least 10 years, 5 years of which must have been reaching
the age of 16 years. This restriction would prevent the perpetuation of
United States citizenship by citizens born abroad who remain there, or
who may have been born in the United States but who go abroad as
infants and do not return to this country. Neither such persons nor
their foreign-born children would have a real American background,
or any interest except that of being protected by the United States
Government while in foreign countries.
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S. Rep. No. 76-2150, at 4 (1940). It thus appears that Congress intended the
residence requirement enacted in 1940 to restrict the transmission of citizenship by
citizen parents living abroad to those parents with “a real American background,”
acquired through extended residence in the United States, that would be conveyed
to their foreign-born children. Such intent would weigh against extending the
one-year presence requirement for unmarried citizen mothers under the 1952 Act,
which was itself more restrictive than its predecessor in the 1940 Act and could
allow further transmission of citizenship by persons “who may have been born in
the United States but who go abroad as infants and do not return to this country.”
Several considerations temper the weight of this expressed intent.
First, it was expressed by the 76th Congress in relation to the provisions of the
1940 Act, and thus can only indirectly inform what the 82nd Congress intended 12
years later when enacting the 1952 legislation. While the residency requirements
of the two statutes are largely similar, the 1952 Act also made significant changes,
including removing the condition that an alien father fail to legitimate a nonmarital
child born abroad before transmitting the mother’s U.S. citizenship to the child;
lowering the age after which five of the ten years of presence must have occurred
from 16 to 14; and increasing a citizen mother’s residency requirement from any
duration to one year of continuous presence. Nationality Act of 1940, § 201(g), 54
Stat. at 1139; Immigration and Nationality Act of 1952, § 309(c), 66 Stat. at
42

238–39. While the last of these changes was more restrictive than the 1940 statute,
the first two made it easier for both unmarried fathers and unmarried mothers to
transmit their citizenship to their foreign-born children. Because the legislative
history of the 1952 Act provides no insight into the reasons for these changes or
the physical presence requirements more generally, Congress’s intent in enacting
them in 1952 remains less than certain.
Second, the Court is mindful of the greater context in which the 1952
Act was passed. As discussed above, there is a strong argument to be made that
the physical presence requirements were motivated, at least in part, by a desire to
“ensure the integrity of the racial bars and national origins quotas” that existed
prior to, and were carried forward by, the 1940 Act. Collins, 123 Yale L.J.
2191–96, 2206. As of 1950, U.S. immigration law barred all immigration from a
geographical zone that included “parts of China, all of India, Burma, Siam, the
Malay States, a part of Russia, part of Arabia, part of Afghanistan, most of the
Polynesian Islands, and the East Indian Islands.” S. Rep. No. 81-1515, at 368
(1950). Other provisions declared certain peoples to be “racially ineligible for
admission: Burmese, Japanese, Koreans, Malayans, Maoris . . . natives of New
Zealand, Polynesians, natives of Tahiti, and Samoans.” Id. at 369. Chinese
immigration was prohibited from 1882 until 1943, when Congress added China to
the race-based national quota system. Id. The 1952 Act, which repealed
43

provisions related to the barred zone and racial ineligibility, still retained the
racially restrictive quota system. Immigration and Nationality Act of 1952,
§§ 201–207, 66 Stat. at 175–81; see also Presidential Veto Message, H.R. Doc. No.
82-520, at 2–5 (1952); S. Rep. No. 81-1515, at 455 (1951).
Congress’s intent with regard to the physical presence requirements
must be viewed in light of this overall statutory scheme. As noted above, the
ten-year residency requirement in the 1940 Act was explained by a State
Department official in testimony before Congress as an improvement over the
1934 law because “[i]t does not result in spreading citizenship over the face of the
earth quite so much . . . among aliens.” To Revise and Codify the Nationality
Laws of the United States into a Comprehensive Nationality Code: Hearing Before
the H. Comm. on Immigration and Naturalization, 76th Cong. 40 (1945). The
official noted that as the law then existed, a U.S. citizen of Chinese or Mexican
descent could “marr[y] a Chinese in China or a Mexican in Mexico, as the case
may be, and they [could] have children” who “are born citizens of the United
States.” Id. at 40–41. Congressman Poage echoed the concern, noting that an
American citizen “in my State could not marry a Chinese, but an American citizen
can go abroad and marry a Chinese and bring her and all her children back to the
United States and make them citizens.” Id. at 42. Professor Collins has identified
an abundance of further examples, outside of the specific context of physical
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presence requirements, in which lawmakers voiced concerns that allowing a citizen
mother to transmit her citizenship to children born abroad would result in
extending citizenship to racially ineligible aliens. See Collins, 123 Yale L.J. at
2192–96 & n.237.
A law intended to restrict the ability of citizens to transmit their
citizenship to their children on the basis of their race, even if facially race-neutral,
raises serious equal protection concerns. See Hunter v. Underwood, 471 U.S. 222,
232 (1985); Gomillon v. Lightfoot, 364 U.S. 339, 347 (1960). Here, the history of
the residence requirements for transmission of citizenship by a citizen parent to a
foreign-born child, viewed in the context of the racially exclusionary statutory
scheme of immigration of which those requirements were a part, strongly suggest
that such restriction was at least one purpose of the ten-year physical presence
requirement enacted in 1940 and carried forward in the 1952 Act. Even if the 82nd
Congress indeed intended that ten years of physical presence be the rule, rather
than the exception, for citizen parents of foreign-born children, the Court hesitates
to fashion an equal protection remedy based on a law that may itself violate equal
protection.
Finally, assuming that Congress’s intent was simply to ensure a
sufficient connection between the citizen parent and the United States so that the
parent would be able to pass on American values to a foreign-born child, the Court
45

is not persuaded that extending the one-year continuous presence requirement to
unmarried citizen fathers would prove inconsistent with that intent. Here, Villegas,
Jr. has lived in the United States nearly his entire life, with the exception of five
years during his childhood. He was unable to transmit his citizenship to Petitioner
not because he had not spent enough time in the United States prior to Petitioner’s
birth, but because Petitioner was born before Villegas, Jr. turned 19. The citizen
parents involved in court challenges to various aspects of the requirements for
transmission of citizenship to foreign-born children have exhibited similarly strong
ties to this country. See, e.g., Brief for Petitioner at 4, Nguyen, 208 F.3d at 57 (No.
99-2071) (petitioner’s father had lived in the United States continuously through
early adulthood and brought petitioner to live in the United States when petitioner
was six years old); Miller v. Albright, 523 U.S. 420, 425 (1998) (petitioner’s father
was a member of the U.S. military who conceived petitioner while on a tour of
duty); Brief for Petitioner at 2–3, Flores-Villar, 131 S. Ct. 2312 (No. 09-5801)
(petitioner’s father had resided in the United States for 10 years prior to
petitioner’s birth and raised petitioner in the United States, but was only 16 when
petitioner was born); Morales-Santana, 2015 WL 4097296, at *1 (petitioner’s
father was born and grew up in Puerto Rico, but left for the Dominican Republic
20 days prior to his 19th birthday); Cervantes-Nava, 281 F.3d at 502 (petitioner’s
mother was born and grew up in the United States, moved to Mexico at age 11, and
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returned to work in the United States at age 19); Brief for Petitioner at 5,
Willkomm v. Holder, 341 F. App’x 281 (9th Cir. 2009) (unpublished) (No.
06-75631) (petitioner’s father served in the Navy for 29 years and conceived
petitioner while on active duty); O’Donovan-Conlin v. U.S. Dep’t of State, 255 F.
Supp. 2d 1075, 1077–78 (N.D. Cal. 2003) (citizen father had lived in Arizona for
his entire life except for periods of work abroad totaling of four years). It thus
does not appear to the Court that extending the one-year continuous presence
requirement to unmarried citizen fathers of children born abroad would necessarily
result in transmission of citizenship by fathers “with no real American background,
or any interest except that of being protected by the United States Government
while in foreign countries.”
In light of these considerations, the Court finds that extension of the
one-year continuous presence requirement to unmarried citizen fathers is the
appropriate remedy for the equal protection violation here. See Morales-Santana,
2015 WL 4097296, at *12–13; Heckler, 465 U.S. at 739 n.5 (noting that
“ordinarily, extension, rather than nullification, is the proper course”). 16

16

The Court notes its conclusion regarding the proper remedy is consistent with
the Fifth Circuit’s decision in United States v. Cervantes-Nava, 281 F.3d 501 (5th
Cir. 2002). In that case, a criminal defendant challenged his conviction for illegal
reentry on the basis that he was a citizen, arguing that the different physical
presence requirements for the transmission of citizenship by married and
unmarried mothers violated equal protection. Id. at 503. The Fifth Circuit
assumed arguendo that the statute was unconstitutional and analyzed whether the
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Importantly, this remedy does not amount to a grant of citizenship. Under the
Court’s analysis of the constitutionality of § 1409(a) and (c), Petitioner has always
been a United States citizen. His claim is not that of “an alien who seeks political
rights as a member of this Nation,” which may be obtained “only upon terms and
conditions specified by Congress.” INS v. Pangilinan, 486 U.S. 875, 884 (1988)
(quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)). Petitioner instead
claims that he is a citizen as of his birth. See Nguyen, 533 U.S. at 95–96
(O,Connor, J., dissenting) (“Petitioners . . . seek severance of the offending
provisions so that the statute, free of its constitutional defect, can operate to
determine whether citizenship was transmitted at birth.”). The Court’s judgment in
his favor “confirm[s] [his] pre-existing citizenship”; it does not “grant [him] rights
that [he] does not now possess.” Miller, 523 U.S. at 432 (opinion of Stevens, J.).
defendant would be entitled to relief under the appropriate equal protection
remedy.
The court found that severing the more stringent requirement of INA
§ 301(a)(7) would not eliminate the (assumed) unconstitutional distinction between
legitimate and illegitimate mothers because § 309(c) specifically benefits the
mothers of children born “out of wedlock.” Id. at 505. To extend the shorter
residency requirement to married mothers, the court would have had to “rewrite
§ 309(c).” Id. The court thus found that severing § 309(c) would be the
appropriate remedy to cure the equal protection defect. Id. at 506.
Here, the Court need not “engage in legislative draftsmanship.” Id. The
unconstitutional distinction here is between unmarried citizen fathers and
unmarried citizen mothers, and extension of § 1409(c) to unmarried citizen fathers
is not inconsistent with the “out of wedlock” language used § 1409. It is enough to
sever the ten-year requirement of § 1401(a)(7) incorporated by § 1409(a) and
replace the term “mother” in § 1409(c) with its gender-neutral equivalent. This
remedy is within this Court’s remedial power. See Califano, 443 U.S. at 92.
48

Absent the impermissible gender-based discrimination between unmarried citizen
parents at issue here, Petitioner was a citizen as of his birth.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART the Government’s Motion to Dismiss, DECLARES that the
different physical presence requirements imposed on unmarried citizen mothers
and unmarried citizen fathers for transmission of citizenship to foreign-born
children by 8 U.S.C. § 1409, as the statute applied at the time of Petitioner’s birth,
violates the Constitution’s guarantee of equal protection under the Fifth
Amendment, and GRANTS Petitioner’s Petition for Writ of Habeas Corpus.
IT IS SO ORDERED.
DATED: San Antonio, Texas, August 17, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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