High Court Considers Immigration Case

Jan. 9, 2001 -- Tuan Ahn Nguyen was born in Saigon, Vietnam, in 1969, the son of a Vietnamese mother who abandoned him at birth. He was raised by his father, Joseph Boulais, an American living and working in Vietnam during the war.

Today, lawyers for Nguyen and Boulais appeared before the U.S. Supreme Court challenging a federal statute that imposes different standards on fathers than on mothers for conferring citizenship on foreign-born and out-of-wedlock children. Under the law, mothers of out-of-wedlock children do not have to formally prove their parenthood — fathers do.

The father and son’s saga began in April 1975, when Saigon fell to North Vietnamese communist forces and the city dissolved in chaos. At the time, Boulais and his new Vietnamese wife, Mai, were away on a business trip.

Nguyen fled the country and was brought to the United States as a refugee, becoming a legal permanent resident under federal law. He was reunited with Boulais and his wife, who raised him in Texas.

Twenty-five years later, Nguyen and his father find themselves at the center of a debate about immigration and gender-classification under the law.

Convictions Start Deportation Proceedings

Problems with Nguyen’s immigration status arose in August 1992, after he pleaded guilty in Texas state court to two felony charges of sexual assault on a child, according to court documents. He was sentenced to two 8-year prison terms.

While incarcerated in Huntsville, Texas, Nguyen was interviewed by an Immigration and Naturalization Service agent. Based on what Nguyen told the agent about his personal history, the INS began deportation proceedings against him in April 1995.

The agency claimed Nguyen was subject to the proceedings because he was an alien who was also a convicted felon. An immigration judge agreed and ordered him deported.

Nguyen and his father appealed the order to the Board of Immigration Appeals. With the appeal pending, Boulais began a paternity proceeding in a Texas district court to prove Nguyen was his son.

Based on DNA testing results, Boulais obtained a paternity decree in February 1998, deeming him Nguyen’s father. Despite that evidence, the appeal was dismissed six months later.

Boulais and Nguyen challenged the deportation order in federal court.

Standards Differ by Gender

At the heart of the dispute is a section of the federal Immigration and Nationality Act which requires fathers who want to acknowledge out-of-wedlock children to take certain steps before the children reach 18. They must: Prove a blood relationship to the child; agree to provide financial support until he or she reaches 18; and acknowledge their child under oath or have paternity established by a competent court.

Mothers trying to legally acknowledge out-of-wedlock children need not take these steps, however. If a mother is a citizen and has lived in the U.S. for at least one year at any time in her life, her child also is automatically a U.S. citizen.

Nguyen and Boulais, represented by the NOW Legal Defense Fund, argue the gender-classification within the statute violates the Fifth Amendment equal protection guarantee. Today, Justice Sandra Day O’Connor questioned whether the law would pass “heightenedscrutiny,” a test usually applied in sex discrimination cases.

INS attorneys argued that because the mother is present at birth, her relationship to the child is easier to establish. Under this argument, fathers must take further steps to show paternity and a relationship with the child. Such rules of citizenship, established by Congress, are also necessary to avoid fraud, the INS argues.

Justice David H. Souter, however, said that even thoughit is much easier for a mother to prove her relationship with herchild, he didn’t “see how that goes to justification of unequaltreatment.”

A panel of 5th Circuit Court of Appeals, on a unanimous vote, ruled the statute was constitutional and dismissed the appeal. The panel had based its ruling on a 1998 U.S. Supreme Court decision, Miller vs. Albright, which declared it was constitutional for the government to ensure that there be a reliable proof of blood-tie between the father and child.

Courts Have Divided in Past

But the Miller decision was fractious, coming down 6-3 and yielding five separate opinions, indicating the statute could be successfully challenged on different grounds. Also complicating matters, the Ninth U.S. Circuit Court of Appeals struck down the statute in a similar case in 1999.

Nguyen and his father are now asking the U.S. Supreme Court to rule the statute unconstitutional.

“The special requirements imposed on fathers, including the time limit for legitimizing and acknowledging the child, reflect the stereotype that fathers will not typically have such connections to their children,” according to the brief filed by the NOW Legal Defense Fund. “By giving these stereotypes the force of law, [the statute] operates to deny rights to fathers like Joseph Boulais who do not conform to expected sex-based social roles.”

A decision in Nguyen vs. INS is expected by summer.