No. 99-2071 

In the Supreme Court of the United States 

TUAN ANH NGUYEN AND JOSEPH BOULAIS, 
PETITIONERS 

v. 

IMMIGRATION AND NATURALIZATION SERVICE 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE RESPONDENT 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

MICHAEL JAY SINGER 
JOHN S. KOPPEL 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Under Section 309(a) of the Immigration and Nation- 
ality Act, 8 U.S.C. 1409(a), a child born abroad out of 
wedlock to a father who is a citizen of the United States 
and a mother who is not a citizen becomes a citizen of 
the United States, as of his date of birth, only if, inter 
alia, paternity is formally established by legitimation, 
written acknowledgment, or court decree while the 
child is under the age of 18, and the father agrees in 
writing to provide financial support for the child during 
the child’s minority. Section 309(c) of the INA, 8 U.S.C. 
1409(c), permits a child born abroad out of wedlock to 
claim citizenship on the basis of his relation to a citizen 
mother, so long as the mother had previously been 
physically present in the United States, before the 
child’s birth, for a continuous period of at least one 
year. The question presented is as follows: 

Whether the requirements for transmission of 
citizenship imposed upon United States citizen fathers 
by Section 1409(a) violate the equal protection com- 
ponent of the Due Process Clause. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 2 

Discussion ........................................................................................ 6 

Conclusion ....................................................................................... 9 

TABLE OF AUTHORITIES 

Cases: 

INS v. Pangilinan, 486 U.S. 875 (1988) ............................ 

8 

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

2, 8 

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

(9th Cir. 1999), petition for cert. pending, No. 

99-1872 ..................................................................................... 6-7 

Constitution and statutes: 

U.S. Const. Amend. V (Due Process Clause) ...................... 

2, 5 

Illegal Immigration Reform and Immigrant Respon- 
sibility Act of 1996, Pub. L. No. 104-208, § 309(c)(4)(G), 

110 Stat. 3009-626 to 3009-627 ........................................ 

4-5 

Immigration and Nationality Act, 8 U.S.C. 1101 et seq.: 

§ 241(a)(2)(A)(ii)-(iii), 8 U.S.C. 1251(a)(2)(A) 

(ii)-(iii) .............................................................................. 3 

§ 301(c), 8 U.S.C. 1401(c) ................................................. 

2 

§ 301(d), 8 U.S.C. 1401(d) ................................................ 

2 

§ 301(e), 8 U.S.C. 1401(e) ................................................ 

2 

§ 301(g), 8 U.S.C. 1401(g) ................................................ 

2 

§ 309(a), 8 U.S.C. 1409(a) ................................. 

2, 5, 6, 7, 8, 9 

§ 309(c), 8 U.S.C. 1409(c) ................................................. 2 

(III) 

In the Supreme Court of the United States 

No. 99-2071 

TUAN ANH NGUYEN AND JOSEPH BOULAIS, 
PETITIONERS 

v. 

IMMIGRATION AND NATURALIZATION SERVICE 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE RESPONDENT 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-13a) 
is reported at 208 F.3d 528. The opinion of the Board of 
Immigration Appeals on reconsideration (Pet. App. 14a- 
16a) is unreported. The initial opinion of the Board of 
Immigration Appeals (Pet. App. 17a-19a) is unreported. 
The deportation order of the immigration judge (Pet. 
App. 20a-21a) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
April 17, 2000. The petition for a writ of certiorari was 
filed on June 26, 2000. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

(1) 

2 

STATEMENT 

1. Section 309(a) of the Immigration and Nationality 
Act (INA), 8 U.S.C. 1409(a), permits a child born out- 
side the United States to unmarried parents to claim 
United States citizenship on the basis of the child’s 
relation to a United States citizen father, so long as (i) 
there is “clear and convincing evidence” of a blood 
relationship between the child and the father, (ii) the 
father agrees in writing to provide financial support for 
the child while the child is under the age of 18, and (iii) 
before the child turns 18 there is some formal legal 
acknowledgment of paternity, either by legitimation 
under the laws of the child’s residence or domicile, by 
adjudication of a competent court, or simply by the 
father’s execution of an acknowledgment in writing 
under oath. The citizen father must also meet a resi- 
dency requirement imposed through Section 1409(a), by 
8 U.S.C. 1401(c), (d), (e), or (g). Section 309(c) of the 
INA, 8 U.S.C. 1409(c), permits a child born abroad out 
of wedlock to claim citizenship on the basis of his 
relation to a United States citizen mother, so long as 
the mother had previously been physically present in 
the United States, before the child’s birth, for a 
continuous period of at least one year. 

2. In Miller v. Albright, 523 U.S. 420 (1998), this 
Court considered, but failed definitively to resolve, the 
question whether Section 1409(a) violates the equal 
protection component of the Due Process Clause of the 
Fifth Amendment. Two Members of the Court con- 
cluded that Section 1409(a) does not violate the equal 
protection rights of either the child or the citizen father. 
See id. at 432-445 (opinion of Stevens, J.). Two Justices 
agreed that the statute does not violate the child’s 
equal protection rights. Id. at 451-452 (O’Connor, J., 

3 

concurring in the judgment). Those Justices declined to 
consider whether the statute unconstitutionally dis- 
criminates against citizen fathers, since the father 
involved in that case had abandoned his equal pro- 
tection claim and was not a party in this Court, and the 
child did not, in the view of those Justices, have third- 
party standing to raise the father’s equal protection 
rights. Id. at 445-451. Two Justices declined to address 
the constitutional claim of either the father or the child 
on the ground that the Court would lack power to 
confer citizenship as a remedy even if the statute 
were held to be unconstitutional. Id. at 452-459 (Scalia, 
J., concurring in the judgment). Three Justices 
would have held that the statute is unconstitutional. Id. 
at 461-471 (Ginsburg, J., dissenting); id. at 471-490 
(Breyer, J., dissenting). 

3. Petitioner Tuan Anh Nguyen was born in South 
Vietnam on September 11, 1969. His mother, a Viet- 
namese citizen, abandoned him at birth. His natural 
father is petitioner Joseph Alfred Boulais, an American 
citizen. In June 1975, Nguyen came to the United 
States as a refugee, and he subsequently became a 
lawful permanent resident. He was raised in Texas by 
Boulais. Pet. App. 2a. 

On August 28, 1992, Nguyen pleaded guilty in Texas 
state court to two felony charges of sexual assault on a 
child, and he was sentenced to eight years in prison 
for each crime. The Immigration and Naturalization 
Service (INS) subsequently initiated deportation pro- 
ceedings against him. The gravamen of the deportation 
charges was that Nguyen was deportable under 8 
U.S.C. 1251(a)(2)(A)(ii)-(iii) as an alien who had been 
convicted of two crimes involving moral turpitude, as 
well as an aggravated felony. Pet. App. 2a. 

4 

In the course of the deportation proceedings, Nguyen 
sought to challenge the show cause order on the ground 
that he is a United States citizen. He ultimately testi- 
fied under oath, however, that he was not a citizen of 
the United States, but a citizen of Vietnam, and he 
admitted that he was convicted of the aforementioned 
crimes. The immigration judge found Nguyen to be 
deportable, and Nguyen appealed to the Board of Immi- 
gration Appeals (BIA). Pet. App. 3a. 

While the BIA appeal was pending, petitioner 
Boulais instituted a paternity proceeding in a Texas 
state court. Pet. App. 3a. In February 1998, he 
obtained an “Order of Parentage” (based upon DNA 
test results) adjudging him to be Nguyen’s father. Ibid. 
The BIA nevertheless dismissed his appeal (id. at 17a- 
19a), explaining that Nguyen had “failed to provide the 
Immigration Judge with evidence to support [his] 
citizenship claim,” id. at 17a-18a. The BIA subse- 
quently denied Nguyen’s motion for reconsideration, 
relying in part on this Court’s decision in Miller. Id. at 
14a-16a. 

4. Petitioners Nguyen and Boulais sought review of 
the BIA’s decision in the court of appeals.1 The INS 
moved to dismiss petitioners’ appeal for lack of juris- 
diction. The INS relied on Section 309(c)(4)(G) of the 
Illegal Immigration Reform and Immigrant Responsi- 
bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 
Stat. 3009-626 to 3009-627, which provides that “there 
shall be no appeal permitted in the case of an alien who 
is inadmissible or deportable by reason of having com- 

1 Petitioners also filed a habeas corpus petition in the United 
States District Court for the Southern District of Texas, which 
was held in abeyance pending the court of appeals’ decision. Pet. 
App. 4a & n.2. 

5 

mitted” specified criminal offenses. See Pet. App. 4a. 
The court of appeals granted the government’s motion 
to dismiss the petition for review. Id. at 1a-13a. 

The court of appeals stated that because there was 
no dispute that Nguyen had been convicted of crimes 
covered by IIRIRA § 309(c)(4)(G), the court would lack 
jurisdiction over the appeal if Nguyen were in fact an 
alien. Pet. App. 4a-5a. The court therefore held that 
the “determin[ation] whether Nguyen is a citizen” was 
“a threshold question in the determination of [the 
court’s] jurisdiction.” Id. at 5a. The court of appeals 
treated the state court’s “Order of Parentage” as con- 
clusively “establishing[ing] that Boulais is Nguyen’s 
biological father.” Id. at 6a. The court found on that 
basis that “there [we]re no genuine issues of material 
fact regarding Nguyen’s nationality leaving this court 
to determine whether Nguyen is a citizen of the United 
States.” Ibid. 

The court of appeals found it “clear that Nguyen has 
failed to establish the citizenship requirements outlined 
in” 8 U.S.C. 1409, since “Boulais failed to ‘legitimate’ 
Nguyen before his eighteenth birthday by acknowl- 
edging paternity in writing or establishing Nguyen’s 
paternity in a court of competent jurisdiction.” Pet. 
App. 8a. The court therefore addressed petitioners’ 
contention that the requirements of 8 U.S.C. 1409(a) 
should not be applied to Nguyen’s claim of citizenship 
on the ground that Section 1409(a) violates the equal 
protection component of the Due Process Clause. In 
analyzing the constitutional issue, the court considered 
the impact of the statutory scheme both on Nguyen and 
on Boulais. The court explained that Boulais—unlike 
the father in Miller—had “made every effort to 
represent his own interests in the present suit” and 

6 

therefore “should be allowed to represent his own 
interest in the present action.” Pet. App. 9a. 

On the merits, principally for the reasons stated in 
Justice Stevens’s opinion in Miller, the court of appeals 
held that Section 1409(a) is constitutional. Pet. App. 
11a-13a. The court explained that the statute “helps to 
ensure reliable proof of a biological relationship be- 
tween the citizen parent and the child,” and is “well 
tailored to meet the important governmental objectives 
of encouraging healthy parent-child relationships while 
the child is a minor, and fostering ties between the 
foreign born child [and] the United States.” Id. at 12a. 
Having rejected petitioners’ constitutional challenge to 
Section 1409(a), the court concluded that “Nguyen does 
not meet the [statutory] criteria for citizenship” and 
that his petition for review of the deportation order 
should be dismissed. Id. at 13a. The court explained 
that 

Boulais did not establish Nguyen’s paternity before 
he reached the age of majority. Although Boulais 
has now obtained an order of parentage that order 
was decreed in 1998, and Nguyen was twenty eight 
years old. Thus, due to Nguyen’s status as an alien, 
under IIRIRA this court is precluded from review- 
ing the BIA’s final deportation order. Thus, we 
grant the INS’s motion to dismiss the appeal. 

Ibid. 

DISCUSSION 

The Fifth Circuit in this case upheld Section 1409(a) 
against petitioners’ equal protection challenge. That 
decision is correct. As petitioners explain (Pet. 10-11), 
however, the Fifth Circuit’s ruling squarely conflicts 
with the Ninth Circuit’s decision in United States v. 

7 

Ahumada-Aguilar, 189 F.3d 1121, 1125-1127 (1999), 
petition for cert. pending, No. 99-1872, which held that 
Section 1409(a) violates the equal protection rights of 
citizen fathers. We agree with petitioners that the 
constitutional issue warrants review by this Court, in 
view of the circuit conflict on the issue and the 
recurring nature of the question.2 

The government has filed a petition for a writ of 
certiorari in Ahumada-Aguilar.3 In our view, however, 
the instant case provides a better vehicle for ultimate 
resolution of the constitutional issue by this Court. 
Ahumada-Aguilar (like Miller) presents the threshold 
question whether an individual who bases his claim 
to citizenship on a constitutional challenge to Section 
1409(a) may assert the equal protection rights of his 
father. Although the Ninth Circuit held that Ahumada- 
Aguilar had third-party standing to assert his father’s 
rights because the father is deceased, see 189 F.3d at 
1126, our petition in that case explains (at 10-16) why 
that holding is erroneous. Thus, while we believe that 
the Ninth Circuit’s decision in Ahumada-Aguilar war- 
rants reversal by this Court, we do not believe that the 
equal protection claim brought on behalf of the citizen 
father is properly presented in that case. 

We suggested in our certiorari petition in Ahumada- 
Aguilar that the Court might wish to consider sum- 
mary reversal of the judgment of the Ninth Circuit in 
that case on third-party standing grounds. We ex- 
plained that summary reversal on that ground would 

2 The Second Circuit has not yet rendered its decision in Lake 

v. Reno, No. 99-4125 (argued Mar. 31, 2000), which, as petitioners 
note (Pet. 14), presents the same issue. 

3 We are furnishing petitioners’ counsel with copies of the peti- 
tion and reply brief filed by the government in Ahumada-Aguilar. 

8 

eliminate the Ninth Circuit’s judgment holding an Act 
of Congress unconstitutional, the circuit conflict on the 
constitutional issue, and the prospect that the Court 
would grant plenary review due to the Ninth Circuit’s 
constitutional ruling only to find itself precluded from 
reaching that issue because of the threshold standing 
obstacle. See 99-1872 Pet. at 16-17, 22, 23. The instant 
case, by contrast, presents no third-party standing 
issue, because the father whose equal protection rights 
are alleged to have been violated was a party in the 
court of appeals and is a petitioner in this Court. We 
therefore believe it would be appropriate for the Court 
to grant certiorari in this case and to hold our petition 
in Ahumada-Aguilar pending the Court’s decision in 
this case.4 

4 The government does not dispute that petitioner Boulais is 
petitioner Nguyen’s natural father, or that Boulais’s equal pro- 
tection rights may properly be resolved in this case. We note that, 
if the Court were to find 8 U.S.C. 1409(a) unconstitutional, it would 
need to decide a remedial question presented but not resolved in 
Miller—i.e., whether a court has the power to declare petitioner 
Nguyen to be a citizen of the United States despite the absence of 
a statute conferring citizenship. Compare Miller, 523 U.S. at 452- 
459 (Scalia, J., concurring in the judgment) (concluding that a court 
lacks the power to confer citizenship on a foreign-born individual in 
the absence of a statute that provides for citizenship, even as a 
remedy for a constitutional infirmity in the citizenship statute 
itself), with id. at 445 n.26 (opinion of Stevens, J.) (noting but not 
reaching remedial issue); id. at 451 (O’Connor, J., concurring in the 
judgment) (citing Justice Scalia’s opinion and acknowledging the 
“potential problems with fashioning a remedy”); id. at 488-490 
(Breyer, J., dissenting) (concluding that the Court may appro- 
priately declare the plaintiff to be a citizen). See also INS v. 
Pangilinan, 486 U.S. 875, 885 (1988) (where Congress has set 
specific statutory limits on a provision for naturalization, “[n]either 
by application of the doctrine of estoppel, nor by invocation of 
equitable powers, nor by any other means does a court have the 

9 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

MICHAEL JAY SINGER 
JOHN S. KOPPEL 

Attorneys 

AUGUST 2000 

power to confer citizenship in violation of [those] limitations”). 
That remedial issue, however, will presumably be implicated by 
every constitutional challenge to Section 1409(a).