CITIZENSHIP THEORIES, IMMIGRATION AND ... THEORIES, IMMIGRATION AND NATIONALITY ACT SECTION 309 & NGUYEN V. INS: HOW THE SUPREME COURT GOT IT WRONG Rachel Baskin* INTRODUCTION Suppose

CITIZENSHIP THEORIES, IMMIGRATION ANDNATIONALITY ACT SECTION 309 & NGUYEN

V. INS: HOW THE SUPREME COURTGOT IT WRONG

Rachel Baskin*

INTRODUCTION

Suppose Anne was born in Vietnam to Jim, who is a Vietnamesecitizen and Marie, who is a United States citizen. Jim and Marie werenever married. Anne never traveled to the United States. From the timeshe was an infant she lived with her father and his wife in Vietnam.Anne thinks her mother returned to the United States, but neither shenor her father can be sure of her mother's whereabouts. Jim continuallysupported Anne while they lived in Vietnam.

Anne recently came to the United States without the proper traveldocuments and was placed in removal proceedings.' At the proceedings,she argued that she could not be deported because she was a UnitedStates citizen. This was the first time that Anne had ever stepped foot inthe United States and she does not remember the last time she hadcontact with her mother. Nevertheless, she claimed that she acquiredUnited States citizenship at birth because she was born to a UnitedStates citizen mother. Since Anne's mother was a United States citizen,Anne was granted citizenship in her own right.2

Suppose, on the other hand, that Tuan Anh Nguyen (Nguyen) wasborn in Vietnam to Hung Thi Nguyen, a Vietnamese citizen and toJoseph Boulais, a United States citizen. His mother and father werenever married. From the time he was an infant, Nguyen lived with his

* J.D. Benjamin N. Cardozo School of Law, 2005; B.A., cum laude, 2002, SUNY Bing-

hamton. I wish to thank Professor Careen Shannon and Professor Ed Stein for their time and

comments on earlier drafts. Thank you so much Professor Lenni Benson for all your time,

encouragement, and ideas in helping me with this topic. Thank you Molly Guptill, AmandaHornung and Tamar Aydin, as well as all the staffers on the journal for your hard work and

careful reading of of this Note. Finally, many thanks to Ellen and Jeff Baskin, and Jeremy

Kaplan for putting up with me through the process of writing this Note.

1 See Immigration and Nationality Act § 237, 8 U.S.C. §1182 (2003).2 Assume that Marie had met all the requirements necessary for her to confer citizenship

upon Anne. See Immigration and Nationality Act § 309(c), 8 U.S.C. § 1409(c) (2003).

870 CARDOZO PUB. LAW, POLICY & ETHICS J [

father and his step-mother. Eventually, Joseph returned to the UnitedStates, and when Nguyen was six years old he came to live with hisfather in America. Neither Nguyen nor his father have tried to contactNguyen's mother since Nguyen arrived in the United States and they areunaware of her whereabouts, or if she is even alive. Joseph continuallysupported Nguyen, first in Vietnam, and then when he arrived in theUnited States.

Nguyen, however, was put into removal proceedings after he wascharged with a crime. Despite the fact that he had lived in the UnitedStates with his father, a United States citizen, who raised and supportedhim from the time he was six years old, and the fact that he had main-tained his status as a lawful permanent resident, USCIS ordered Nguyendeported. In his defense, Nguyen asserted that he could not be de-ported because his father was a United States citizen, so he also enjoyedcitizenship. The court refused to grant relief based on this argument,stating that since Nguyen's father did not comply with the requirementsof section 309 of the Immigration and Nationality Act (INA)3 Josephhad never formally conferred citizenship upon Nguyen.

Nguyen had been raised in the United States and supported by hisfather from the time he was a young child. He knew nothing of hismother and could not remember ever having set foot in Vietnam. Hehad no connections-familial or emotional-with Vietnam and onlyknew of life in the United States. Nevertheless, Nguyen was deported.

The difference between the first hypothetical and the second hypo-thetical, which was based on Nguyen v. Immigration & NaturalizationService,4 demonstrates the inherent unfairness encompassed in section309 of the INA. In this note I will argue that in Nguyen v. Immigration& Naturalization Service5 the Supreme Court failed to protect America'sunderstanding of citizenship. The Supreme Court, in deciding Nguyenupheld section 309(a) of the INA,6 stating that the statutory distinctionwas "consistent with the equal protection guarantees embedded in theDue Process Clause of the Fifth Amendment. ' 7 Rather than discussingwhether the Supreme Court correctly applied the standards in regard to

3 Immigration and Nationality Act § 309, 8 U.S.C. § 1409 (2003).4 533 U.S. 53 (2001).5 Id.6 Immigration and Nationality Act § 309(a).

7 Nguyen, 533 U.S. at 57. The Court held that the "statutory scheme's satisfaction of theequal protection scrutiny we apply to gender-based classifications constitutes a sufficient basisfor upholding it." Id. at 71. The Court has read equal protection guarantees into the Fifth

[Vol. 3:869

CITIZENSHIP AND IMMIGRATION

the equal protection guarantees found in the Due Process Clause of theFifth Amendment,8 I will assert that Nguyen was decided incorrectlybased on our jurisprudential notions of citizenship.

In Part I, I will examine the history of citizenship in the UnitedStates; how it was originally acquired and how it has come to be under-stood. In Part II, I discuss two relevant cases, Miller v. Albright9 andNguyen v. Immigration 6- Naturalization Service1° in which the SupremeCourt upheld the constitutionality of section 309 of the INA and indoing so misunderstood the meaning of citizenship. The Court upheldthis offensive statute based on faulty equal protection analysis ratherthan looking at what it actually means to be a United States citizen."' Iwill argue that INA § 309 undercuts our understandings of citizenship.In order to define the contours of what we commonly mean by citizen-ship, I will examine three prominent theories of citizenship: republican-ism, communitarianism, and liberalism. 2 Under each separate anddistinct theory, the Supreme Court has failed to fulfill its obligations toUnited States citizen fathers and their children by upholding section309(a) of the INA and has failed to examine the meaning of citizenshipin the American context. Finally, I suggest that section 309 of the INA

Amendment, which states, in part, "no person shall ... be deprived of life, liberty, and property,without due process of law .. " U.S. CONST. amend. V.

8 A discussion about the Supreme Court's equal protection analysis in this case has been

discussed elsewhere. See generally Lica Tomizuka, The Supreme Court's Blind Pursuit of OutdatedDefinitions of Familial Relationships in Upholding the Constitutionality of 8 US.C. 1409 inNguyen v. INS, 20 LAw & INEQ. 275 (2002); Jeffrey A. Parness, Old Fashioned Pregnancy,Newly-Fashioned Paternity, 53 SYRACUSE L. REv. 57 (2003); Jennifer Johnson, Survey, Nguyen

v. Immigration and Naturalization Service, 121 S. Ct. 2053 (2001), 12 SETON HALL CONST.

L.J. 323 (2001); Manisha Lalwani, Comment, The "Intelligent Wickedness" of U.S. ImmigrationLaw Conferring Citizenship to Children Born Abroad and Out-of-Wedlock: A Feminist Perspective,

47 VILL. L. REv. 707 (2002); Erin Chlopak, Comment, Mandatory Motherhood and FrustratedFatherhood: The Supreme Court's Preservation of Gender Discrimination in American CitizenshipLaw, 51 AM. U. L. REv. 967 (2002); Jennifer Englander, Casenote, Tuan Anh Nguyen andJoseph Boulais v. Immigration and Naturalization Service, 3 Loy. J. PUB. INT. L. 202 (2002);Jacqueline Barrett, Notes & Comments, Nguyen v. INS: Are Sex-Based Classifications in Citizen-ship Laws Really Constitutional?, 16 TEMP. INT'L & COMP. L.J. 391 (2002); Melissa Fernandez,Note, Title 8 U. S.C. § 1409 of the United States Immigration and Nationality Act-Children Born

Out of Wedlock: Undermining Fathers 'Rights and Perpetuating Gendered Parenthood in CitizenshipLaw, 54 FLA. L. REv. 949 (2002).

9 523 U.S. 420 (1998) (plurality opinion).10 533 U.S. 53 (2001).11 See supra note 8 for references discussing the equal protection analysis employed by the

Court.12 For the purposes of this Note, assume that the United States can be considered a republi-

can, communitarian or liberal country.

2006]

872 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:869

should be modified to comport with republican, communitarian andliberal values.

I. ACQUIRING CITIZENSHIP

There is no single objective definition of citizenship to which wecan commonly refer in order to resolve the different understandings ofwhat citizenship encompasses.' 3 The consensus seems to be that citizen-ship entails some feeling of membership and belonging. 4 In 1958, inChief Justice Warren's dissent in Perez v. Brownell,"' he stated that"[c]itizenship is a man's basic right for it is nothing else than the right tohave rights."' 16 Almost ten years later, in the case that overruled Perez v.Brownell, the Supreme Court wrote that "[c]itizenship in this Nation isa part of a cooperative affair;" "[ilts citizenry is the country and thecountry is its citizenry."' 7 Professor Aeinikoff argues that "citizenship isnot a right held against the state; it is a relationship with the state, or,perhaps, a relationship among persons in the state."18 Professor Schucksuggests that "citizenship provides a focus of political allegiance andemotional energy on a scale capable of satisfying deep human longingsfor solidarity, symbolic identification, and community."' 19 In his analy-

13 See Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447(2000). Bosniak explains that there is no concise definition of citizenship "to which we can referauthoritatively to resolve any uncertainties about citizenship's usage." Id. at 489.

14 See T. Alexander Aleinikoff, Between Principles and Politics: U.S. Citizenship Policy, inFROM MIGRANTS TO CITIZENS: MEMBERSHIP IN A CHANGING WORLD 119, 119 (T. Alexander

Aleinikoff & Douglas Klusmeyer eds., 2000) [hereinafter U.S. Citizenship Policy]; see also Ste-phen H. Legomsky, Why Citizenship?, 35 VA. J. INT'L L. 279, 291 (1994) (stating that "citizen-ship, however defined, is the mark of membership"); RICHARD DAGGER, CIVIC VIRTUES:RIGHTS, CITIZENSHIP AND REPUBLICAN LIBERALISM 52 (1997) (explaining that membership "is

usually defined not only inclusively-that is, in terms of who the members are-but also exclu-

sively, by ruling some people out").15 356 U.S. 44 (1958).16 Id. at 64 (Warren, C.J., dissenting).

17 Afroyim v. Rusk, 387 U.S. 253, 268 (1967).18 T. Alexander Aleinikoff, Symposium, Theories of Loss of Citizenship, 84 MICH. L. REv.

1471, 1488 (1986) [hereinafter Theories of Loss of Citizenship]; see also Aleinikoff, U.S. Citizen-ship Policy, supra note 14, at 149 (Aleinikoff expands his notion of citizenship, stating that"attaining citizenship signifies belonging, commitment, loyalty, a willingness to sacrifice if calledupon to do so."). Richard Dagger explains that being a "citizen is, at the least, to be a memberof a body politic who enjoys certain rights-and is subject to certain duties-by virtue of one's

citizenship." DAGGER, supra note 14, at 99.19 Peter H. Schuck, The Devaluation ofAmerican Citizenship, in CITIZENS, STRANGERS, AND

IN-BETWEENS: ESSAYS ON IMMIGRATION AND CITIZENSHIP 175 (1998); see also RONALD

BEINER, LIBERALISM, NATIONALISM, CITIZENSHIP: ESSAYS ON THE PROBLEM OF POLITICAL

COMMUNITY 83, 94 (2003). Beiner suggests that the


sis of Nguyen v. Immigration & Naturalization Service,2° Professor Mar-tin explains that the "function of citizenship in the modern world meansthat we expect it to reflect more than formal legal status; we expect italso to reflect certain social, cultural, and affective ties."21

A. The History of Citizenship

Understanding citizenship laws in the United States requires a his-torical analysis of its evolving conceptualization. Citizenship used to beunderstood in the form of political allegiance or loyalty to a monarch.22

When an individual was a member in a particular society and showedhis allegiance to the monarch, he was entitled protection; "[p]rotection,like allegiance, was a natural obligation, owed by the superior to theinferior, by the sovereign to the subject. 12 3 All those who owed individ-ual allegiances to the monarch, in turn were owed protection by themonarch. 4 In medieval times, allegiance was understood in the feudalsense. This meant that personal bonds between a "man and lord werethe primary ligaments of the body politic. ' 25 In contrast, the modernnotions of citizenship and nationality create a legal tie not between oneindividual and another, but between an individual and the nation-state.

26

citizen-state relation (or the relation between citizens mediated by the state) involves amode of moral association or moral community because the state doesn't just imposeits own ends but in some measure reflects those of its citizens . . . and politics is theprocess by which we try to influence the set of purposes that the state will pursue andpromote on behalf of all citizens.

Id. at 94.20 533 U.S. 53 (2001).21 David A. Martin, Behind the Scenes on a Different Set: What Congress Needs to Do in the

Aftermath of St. Cyr and Nguyen, 16 GEO. IMMIGR. L.J. 313, 335 (2002) [hereinafter Behind theScenes on a Different Set]; see also ENGIN F. ISIN & PATRICIA K. WOOD, CITIZENSHIP AND

IDENTITY 1, 4 (1999) (explaining that "[c]itizenship can be described as both a set of practices(cultural, symbolic and economic) and a bundle of rights and duties (civil, political and social)that define an individual's membership in a polity"); DAGGER, supra note 14, at 116 (suggestingthat we encourage republican-liberal citizenship, keeping in mind five considerations: size, stabil-ity, fairness, communication and participation).

22 See JAMES H. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at

3-10 (1978).23 Id. at 18.24 Id. at 23.25 Id. at 3-4.26 Id. Kettner continues to explain the importance of property in creating legal bonds be-

tween the individual and the nation-state. He states that since "aliens were denied the right toproperty in land, . . . they could not bring real actions at law." Id. at 6. Moreover, naturaliza-

2006]

874 CARDOZO PUB. LAW, POLICY & ETHICS J.

This notion of loyalty transferred to the American colonies. Inearly colonial times, Americans valued their status as subjects, and con-tinued to affirm their allegiance to the monarch. At the same time,however, they began to move toward a new understanding of citizen-ship, focusing on those ties that bind an individual to his community. 27

As the American colonists tried to establish a republican form of govern-ment, they needed to define principles of membership that "adequatelyencompassed their ideals of individual liberty and community secur-ity."' 2 8 The new and sovereign states of the United States individuallyassumed control over naturalization and established their own proce-dures of admitting aliens to citizenship.29 States' naturalization policiesrecognized that in order to become a citizen, a person must show someconnection with the receiving country or state. For example, some poli-cies rested on notions that "time alone could insure that those imbuedwith 'foreign principles' had the opportunity to assimilate the habits,values and modes of thought necessary for responsible participation in avirtuous. ... self-governing republican... community. ' 30 Early modelsof naturalization and citizenship reflected individuals' relationship withthe sovereign state rather than with the federal government.31

Even the Articles of Confederation did not give the federal govern-ment the power to confer citizenship.32 The Articles of Confederationincluded a contested and confusing clause, the comity clause, which sig-nified that states had the power to confer citizenship.3 3 Nevertheless,

tion in those times was a legal act that equated a man's status in the eye's of the lawful; "that of aman made a subject by God and nature." Id. at 37-38. See also ISIN AND WOOD, supra note 21,at 5 (explaining that it is "important to recognize that the status and practice of citizenshipemerged in specific places in response to specific struggles and conflicts."). Id.

27 KETTNER, supra note 22, at 37-38.

28 Id. at 10.

29 Id. at 214.

30 Id. at 219.

31 Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411,1419 (1997); see also KETTNER, supra note 22, at 230. Although citizenship, in the beginningwas related to an individual's relationship with the state, Kettner recalls debates among thedelegates, writing the Constitution that suggest the delegates understood citizenship to connotesome type of relationship with the federal government. He states that the delegates assumed thata pre-requisite for a high political office was that one had to be a citizen, but they never explicitlydiscussed the relationship between state and national citizenship. Id.

32 KETTNER, supra note 22, at 220. Kettner quotes the "comity" clause from the Articles of

Confederation, which suggests that individual states maintained the power to confer citizenshipupon their residents, in a manner that they saw fit, and other states had to respect such law. Id.

33 Id. 220-21.

[Vol. 3:869


each state was required to recognize that an individual was a citizen if heor she had acquired citizenship in a different state. States had differentcitizenship laws, some more stringent than others. Therefore, an indi-vidual who wanted to become a citizen could be naturalized in one state,and then move to another state with more stringent naturalization re-quirements. As a result, the comity clause undermined states' sover-eignty by "assuming that authorities outside the state could at least inpart determine who could claim the rights of citizenship within it."34

As such, an individual who was recognized as a citizen by the state ofMassachusetts would also be recognized as a citizen by the state of NewYork. Thus, the comity clause had the effect of creating a single com-munity in the United States, despite the fact that there was no explicitnotion of national citizenship.

Despite the fact that naturalization policies remained in the controlof the sovereign states, the new Congress adopted resolutions obligatingthe states to establish naturalization policies. 5 Moreover, the framersincluded a provision in the Constitution, awarding Congress the powerto establish a "uniform Rule of Naturalization. '36 The federal govern-ment did not adopt its first naturalization law until 1790 3 7-after theConstitution was ratified. This act declared that any "free white person"who lived within the United States for two years and for at least one yearin the state in which the person sought admission, who had proven his

good character and who took an oath to "support the constitution ofthe United States," could be naturalized as a United States citizen.38

This federal legislation focused on the residential requirements necessaryfor individuals to become citizens of the United States, while state legis-lation still governed property and political rights. 39 Moreover, the legis-lation established that a child's citizenship depended on his father'sstatus in the United States; children born outside of the United Statescould be considered citizens of the United States provided that theirfather was a resident of the United States.40

34 Id. at 221.

35 Id.36 U.S. CONST. art. I, § 8, cl. 4.

37 See KETTNER, supra note 22, at 236.

38 An Act to Establish an Uniform Rule of Naturalization, ch. 3, 1 Stat. 103 (1790) (re-

pealed 1795).39 KETTNER, supra note 22, at 236.

40 An Act to Establish an Uniform Rule of Naturalization, ch. 3, 1 Stat. 103, 104 (1790)

(repealed 1795).

8752006]


Congress passed the second naturalization act only five years later,which only slightly modified the first act. The legislation required thatan alien seeking admission into the United States declare that he wouldseek naturalization, and it lengthened the residency requirement fromtwo years to five years. 4' Despite the notion that citizenship no longermeant allegiance to a monarch, there was a growing concern among thepolitical parties, particularly the Federalists, that foreigners would haveopposing views to those politicians. This led to increasing the residencyrequirement in the Naturalization Act.42

Fearful that foreigners would not show loyalty to the United States,but rather to opposition parties, the Federalists passed the Alien andSedition Acts in 1798.43 The Alien and Sedition Acts amended theNaturalization Act of 1795. They increased the residency requirementto fourteen years and required an individual to declare his intent tobecome a citizen five years before he would be allowed to be natural-ized.44 Congress passed a new law in 1802 reinstating the provisions ofthe Naturalization Act of 1795.45 The last important piece of pre-CivilWar legislation that dealt with the citizenship of children was the Act ofFebruary 10, 1855. This legislation provided that children born outsideof the United States, to fathers who were United States citizens at thetime of the child's birth, acquired citizenship at birth.46

Post-Civil War constitutional amendments changed the laws ofnaturalization and citizenship, giving way to birthright citizenship.Most notably, the states ratified the Fourteenth Amendment, which as-serts in part, that "[a]ll persons born or naturalized in the United States,and subject to the jurisdiction thereof, are citizens of the UnitedStates. . .. -.7 This amendment, which conferred citizenship upon all

41 KETrNER, supra note 21, at 242 (citing Act of Jan. 29, 1795, 1 Stat. 414 (1975)).42 Id. at 243. Kettner writes that "many Federalists were increasingly convinced that five

years was much too short a time for the process [of acculturation] to work. New citizens showeda disconcerting tendency to support the opposition." Id.

43 Id. at 244.4 4 Id.45 Id. at 246. The Naturalization Act of 1802 required "residence of five years with a decla-

ration of intent three years before admission; oaths or declarations abjuring titles and foreignallegiance and swearing attachment to the principles of the Constitution; and satisfactory proofof good character and behavior." Id.

46 An Act to Secure the Right of Citizenship to Children of Citizens of the United States

Born Out of the Limits Thereof, ch. 71, 10 Stat. 604 (1855) (conferring citizenship at birth tochildren of United States citizen fathers only if the father had resided, at some point in theUnited States).

47 U.S. CONST. amend. XIV, § 1.

[Vol. 3:869


former slaves who were born in the United States and their children,monumentally changed post-Civil War society.

After this amendment, Congress did not make any significantchanges to naturalization law until October 1940, when it enacted theNationality Act of 1940.48 The Nationality Act changed the way inwhich citizenship was transmitted. Rather than obtaining citizenshipthrough a United States citizen father who had resided in the UnitedStates, children acquired citizenship by birth to a United States citizenmother as well.4 9 Although Congress changed the law to reflect thenotion that mothers could transmit citizenship to their children, the law

included a provision for children born out of wedlock almost identicalto section 309(a) of the INA. 0 This provision required that childrenborn out of wedlock could acquire citizenship "provided the paternity isestablished during minority, by legitimation, or adjudication of a com-petent court."51

The last major change in citizenship and nationality law came in1952, when Congress codified the Immigration and Nationality Act.5 2

This act remains current and is referred to today in deciding questionsof immigration, citizenship, and naturalization procedures. This actmade the final changes to the rules that control the citizenship for chil-

dren born out of wedlock on foreign territory.5 3 The Immigration andNationality Act, combined with the Nationality Act of 1940, reflects thenew rules that were implemented to acquire citizenship. These laws nolonger focus solely on one's allegiance to the country. Rather, they rec-

ognize that people can have multiple loyalties that are not inconsistentor threatening to their allegiance.5 4

48 Nationality Act of 1940, ch. 876, 54 Stat. 1137 (1940).

49 Id. at ch. 876, 54 Stat. at 1138.

50 See infra text accompanying notes 77-81.

51 Nationality Act of 1940, ch.876, 54 Stat. at 1139.

52 Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 166-275 (1952).

53 See Immigration and Nationality Act § 309.

54 See Martin, Behind the Scenes on a Different Set, supra note 21, at 8. Martin states that "all

of us have multiple loyalties to family, community, church, college, clubs or sports teams, and

they are not usually seen as inconsistent with allegiance to the nation." Id. But see Aleinikoff,

Theories of Loss of Citizenship, supra note 18, at 1474 (stating that "just as people may feel loyaltyto different family members, different groups, or different institutions of higher learning, so

might a person have allegiance to more than one nation.").

2006]


B. Current United States Citizenship Law

The INA codifies ways in which people may acquire United Statescitizenship. Citizenship may be acquired under the principles ofjus solior jus sanguinis, or through naturalization. Jus soli, citizenship that isacquired from the soil, has been incorporated into United States law bythe Citizenship Clause of the Fourteenth Amendment." One authordefines the principle of jus soli as birth "on the soil of the sovereign'sterritory." 56 The principle ofjus sanguinis applies to those persons witha blood relationship to a United States citizen.57 According to this prin-ciple, citizenship is passed by "descent according to blood kinship." 58

Due to an increase in the mobility of persons, Congress included a pro-vision in the INA for acquiring citizenship through jus sanguinis, thushelping to resolve the problem of children born to United States citizenparents in foreign countries. 59

Aleinikoff points out that "Jus soli and jus sanguinis represent verydifferent understandings of the nature of citizenship and have importantimplications for the integration of immigrants and their children." 60

There is a growing concern in the United States regarding the transmis-sion of citizenship to persons born outside the United States throughjussanguinis.6 ' These policy concerns center on whether a person who wasborn outside of the United States has had adequate contact with Ameri-can traditions and cultures as to be considered a citizen. 62 The UnitedStates is concerned that if such contacts do not exist, then citizenshipshould not be acquired through jus sanguinis, but rather through natu-ralization. Similarly, however, there is another debate focusing on those

55 See Aleinikoff, US. Citizenship Policy, supra note 14, at 124.56 Douglas Klusmeyer, Introduction, in FROM MIGRANTS TO CITIZENS: MEMBERSHIP IN A

CHANGING WORLD 1, 5 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2000) [hereinaf-ter Introduction].

57 Id.58 Id.59 Spiro, supra note 31, at 1436.60 Aleinikoff, US. Citizenship Policy, supra note 14, at 123. Cf PETER SCHUCK & ROGERS

M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 5(1985) (suggesting that the Fourteenth Amendment, which confers jus soli citizenship to anyone

born on United States' soil, should be limited and reinterpreted so that birthright citizenship

reflects a "consentualist" approach). Shuck and Smith argue that citizenship should not auto-matically be conferred upon children of illegal aliens or temporary visitor immigrants, but rather

that Congress decide whether or not it wants to grant citizenship to these newborns; that itshould not be an automatic right. Id.

61 See Aleinikoff, U.S. Citizenship Policy, supra note 14, at 129.62 Id

[Vol. 3:869


children who are born on United States soil, to non-citizen parents whohave no connection to the United States, yet are granted jus soli citizen-ship 63 like those children born abroad to United States citizens.

Naturalization, a formalized legal procedure," is the final way inwhich a person can acquire citizenship. Section 316 of the INA, 5

which governs the requirements of naturalization, mandates in part thatan immigrant must establish five years of permanent residence in theUnited States, and demonstrate good moral character in order to be-come a United States citizen. Section 312 of the INA continues, statingthat no person shall be naturalized unless he has proven his knowledgein American history and civics and has shown that he is able to read,write and speak words in ordinary usage in the English language.66

In the United States, Congress holds the power to determine thelaws of naturalization.67 In accordance with this broad power, Congressdetermines who can naturalize, the procedures governing naturalization,and that citizenship may be acquired through jus sanguinis relationships.Pursuant to this power, Congress has passed various laws governing theacquisition of citizenship for people (1) born on United States terri-tory;68 (2) born to United States citizen parents; 69 (3) born on foreignterritory to United States citizen parents;70 and (4) born on foreign terri-tory to only one United States citizen parent. 71 The majority of these

63 See SCHUCK & SMITH, supra note 60, at 5.64 Introduction, supra note 56, at 5.

65 Immigration and Nationality Act § 316, 8 U:S.C. § 1427 (2003).

66 See Immigration and Nationality Act § 312(a), 8 U.S.C. § 14 23(a) (2003).

67 U.S. CONST. art. I, §8, cl. 4; see also Aleinikoff, U.S. Citizenship Policy, supra note 14, at

133, 153. Aleinikoff highlights a paradox of naturalization and the distinctions Congress has

made between citizenship and immigrants. He states, on the one hand, that "attempts to make

citizenship matter more by increasing the distinctions between citizens and aliens are likely to

produce . . . behavior that is seen as 'cheapening' citizenship; [on the other hand,] . . . erasing

the distinctions between citizenship and aliens seems to reduce citizenship to mere personal

affiliation." Id. at 133. Later, he notes that the United States Supreme Court has given great

deference to the congressional exercise of immigration power because it believes that immigra-

tion regulations frequently involve matter of foreign affairs, which is an area in which judicial

intervention is inappropriate. Id. at 153.68 See Immigration and Nationality Act § 301(a), 8 U.S.C. § 1401(a) (2003). This clause

re-iterates the Citizenship Clause of the Fourteenth Amendment, which states that "[a]ll persons

born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside." U.S. CONST. amend. XIV, § 1.69 See generally Immigration and Nationality Act § 301 (establishing the criteria for people

who are citizens of the United States upon their birth).70 See Immigration and Nationality Act § 301(c).

71 See Immigration and Nationality Act §§ 301(d), (e), (g).

2006]


rules are gender-neutral, establishing specific and often simple criteriafor applicants to meet in order to attain United States citizenship. How-ever, section 309 of the INA mandates that United States citizens-menand women-fulfill different requirements when transmitting citizen-ship to their children born out of wedlock on foreign territory. 72

In conjunction with its power to determine the laws of naturaliza-tion, Congress has the authority to determine who has acquired citizen-ship through a jus sanguinis relationship with a United States citizen.73

With regards to persons born "outside the geographical limits of theUnited States and its outlying possessions"74 and to "parents, one ofwhom is an alien, and the other a citizen of the United States," 75 section301(g) of the INA governs the requirements to attain citizenship atbirth. These requirements are seemingly gender-neutral. 76 Section301(g) also includes a requirement that United States citizen parentsmust have had some relationship and contact with the United Statesbefore transmitting their citizenship to their children born on foreignterritory. However, section 301(g) makes no mention of any relation-ship that must be formed between a United States citizen and his or herchild before transmitting citizenship if the child is born abroad. Fur-thermore, section 301 of the INA does not require that the parents ofthe newborn be married in order to transmit citizenship to a child.

Section 309 of the INA governs the transmission of citizenship tochildren born out of wedlock. Unlike section 301, section 309 of theINA includes different requirements for transmitting citizenship to chil-dren born on foreign territory and out of wedlock, depending onwhether the United States citizen parent is a male or female.77 UnitedStates citizen fathers are required by section 309(a) of the INA to takecertain affirmative steps before they can transmit United States citizen-ship to their children; whereas United States citizen mothers do not have

72 See Immigration and Nationality Act § 309.

73 See Immigration and Nationality Act § 301. This section governs those persons who shallbe nationals and citizens of the United States at birth.

74 Immigration and Nationality Act § 301(g).

75 Id.76 Id. The Immigration and Nationality Act § 310(g) states, in part, that a person shall be a

national and citizen of the United States at birth if his parent who is a citizen of the UnitedStates "prior to the birth of such person, was physically present in the United States or itsoutlying possessions for a period or periods totaling not less than five years, at least two of whichwere after attaining the age of fourteen years. .. "

77 See Immigration and Nationality Act §§ 309(a), (c).

[Vol. 3:869


to submit to such requirements. In order to transmit citizenship to achild at birth, section 309(a) requires:

(1) a blood relationship between the person and the father is estab-lished by clear and convincing evidence,

(2) the father had the nationality of the United States at the time ofthe person's birth,

(3) the father (unless deceased) has agreed in writing to provide finan-cial support for the person until the person reaches the age of 18years, and

(4) while the person is under the age of 18 years-A. the person is legitimated under the law of the person's resi-

dence or domicile,B. the father acknowledges paternity of the person in writing

under oath, orC. the paternity of the person is established by adjudication of a

competent court. 78

These same requirements however, do not apply to United States citizenmothers of children born out of wedlock in foreign territories. 79 Rather,section 309(c) of the INA provides that a person born "outside of theUnited States and out of wedlock shall be held to have acquired at birththe nationality status of his mother, if the mother had the nationality ofthe United States at the time of such person's birth,"8 ° and if the motherhad been in the United States or its territories continuously for oneyear.81 This statutory distinction explains the different treatment ofAnne and Nguyen in the introductory hypothetical; it explains the rea-son Anne was granted citizenship while Nguyen was deported.

Despite the fact that Congress has created laws to establish natural-ization and the acquisition of citizenship, it has not fully examined what

78 Immigration and Nationality Act § 309(a).

79 By granting the citizenship of the mother only at birth to a child, this statute ineffectively

deals with problems of statelessness. For example, if a child is born in a country that recognizes

that children have the citizenship of their father, and his father is a United States citizen, thenthe child would be stateless. According to that country's law the child would be a United States

citizen, but according to United States law, the child would have the citizenship of his mother,which would not be recognized in his mother's native country. For more discussion about this

issue, see Erin Chlopak, Comment, Mandatory Motherhood and Frustrated Fatherhood: the Su-

preme Court's Preservation of Gender Discrimination in American Citizenship Law, 51 Am. U. L.

REv. 967, 983-90 (2002).80 Immigration and Nationality Act § 309(c).

81 See id.

2006]

882 CARDOZO PUB. LAW, POLICY 6 ETHICS J V

citizenship encompasses. Congress has failed to look at the notion ofcitizenship to determine what it actually means to be a United Statescitizen. Rather, it has merely accepted the notions of jus soli and jussanguinis citizenship, and codified such ideals in the Immigration andNationality Act. In the INA, Congress has merely enumerated ways inwhich citizenship may be acquired, but has not stated what it means tobe a citizen once an individual has acquired such status (i.e., what pro-tections the government shall give to the individual, or what duties theindividual owes to the state). Similarly, the United States SupremeCourt, deferring to Congress's role in defining naturalization laws, hasalso declined to address the meaning of citizenship.82 For example, theSupreme Court has consistently upheld the application of different stan-dards for United States citizen fathers and United States citizenmothers.83 Through its analysis, the Court has stated that section 309of the INA does not violate equal protection guarantees found in theDue Process Clause of the Fifth Amendment, 84 but it failed to examinethe definition of citizenship.

I. RELEVANT CASES UPHOLDING THE CONSTITUTIONALITY OF

INA § 309

A. Miller v. Albright 85

The first time the United States Supreme Court was asked to deter-mine the constitutionality of section 309(a) of the INA was in 1998, inMiller v. Albright.86 A majority of the Court agreed that the petitionerdid not establish that she was a citizen of the United States, however, theCourt did not reach a binding decision determining the constitutional-ity of section 309 of the INA.87

In Miller, the petitioner, Lorelyn Miller (Lorelyn), was born in thePhilippines in 1970, out of wedlock to a Filipino national mother and a

82 See Fiallo v. Bell, 430 U.S. 787 (1977) (stating that the Congress has extremely broad

powers over the rules governing immigration and naturalization, and that the Supreme Courtwould not interfere with such powers). Id. at 792, 799.

83 See Miller v. Albright, 523 U.S. 420 (1998) (plurality opinion); Nguyen v. Immigration

& Naturalization Serv., 533 U.S. 53 (2001).84 U.S. CONST. amend. V. The Fifth Amendment states, in part, that "[n]o person shall . . .

be deprived of life, liberty, or property, without due process of law .... Id.85 523 U.S. 420 (1998) (plurality opinion).

86 Id.

87 Id.

[Vol. 3:869


United States citizen father.88 Her father's name was not listed on herFilipino birth certificate. 89 Lorelyn's father, Charles Miller (Miller),filed a petition in a Texas court to establish his paternity in 1992.90 Thecourt found that Miller was Lorelyn's biological and legal father andissued a "Voluntary Paternity Decree." '91 Following this, Lorelyn triedto file an application for registration as a United States citizen with theState Department, but was denied, despite the Voluntary Paternity De-cree, because the decree failed to meet the standards of section 309(a)(4 )of the INA.92 The State Department said that Miller had failed to meetthe requirements of section 309(a) of the INA because he failed to re-ceive the Voluntary Paternity Decree before Lorelyn reached eighteenyears of age. 93 Lorelyn, along with her father, filed a complaint becauseof the different treatment of United States citizen mothers and fathersunder section 309 of the INA with regards to children born out of wed-lock.94 They alleged that the distinction for children born out of wed-lock to United States citizen fathers, as opposed to United States citizenmothers, violated United States citizen fathers' right to equal protectionfound in the Due Process Clause of the Fifth Amendment. 95 Eventu-ally, Miller dropped out of the proceedings, 96 while Lorelyn's case washeard by the Supreme Court.

As stated above, a majority of the Court determined that Lorelynfailed to establish that she had become a citizen of the United States.97

Justice Stevens, announcing the judgment for the Court, wrote that sec-tion 309 of the INA "draws two types of distinctions between citizenfathers and citizen mothers of children born out of wedlock. '98 Thedistinctions concern the "class of unmarried persons who may transmittheir citizenship at birth to their offspring, and the ... affirmative steps

88 Id. at 424-26.

89 Id. at 425.90 Miller, 523 U.S. at 425.91 Id.

92 Id. at 426. Since Charles Miller got a Decree of Paternity after Lorelyn turned eighteen

years old, her petition was denied. Id.93 Id. at 426.94 Compare Immigration and Nationality Act § 309(a) and (c).95 U.S. CONST. amend. V.96 The United States District Court for the Eastern District of Texas determined that Miller

did not have standing in this case. Miller did not contest this finding when the case was trans-ferred to the District Court for the District of Columbia. Miller, 523 U.S. at 427.

97 See id. at 420.98 Id. at 429.

2006] 883


that are required to transmit such citizenship."99 Justice Stevens ad-dressed the issue of whether the affirmative steps required to be per-formed by United States citizen fathers before their children reach theage of eighteen 00 violated the Due Process Clause of the Fifth Amend-ment °1 and he concluded they did not. He stated that the "substantiverequirement embodied in [section 309(a)( 4 ) of the INA] serves, at leastin part, to ensure that a person born out of wedlock who claims citizen-ship by birth actually shares a blood relationship with an American citi-zen. °10 2 Although Justice Stevens argued that it was an importantgovernment interest that the United States citizen father establish thathe shared a blood relationship with the person claiming to be his child,the government in this case did not question the blood relationship be-tween Charles and Lorelyn Miller.10 3

Justice Stevens further wrote that the government interest servestwo other purposes, aside from determining a blood relationship be-tween the United States citizen parent and the child. He said that thegovernment has an interest "in encouraging the development of ahealthy relationship between the citizen parent and the child while thechild is a minor; and the related interest in fostering ties between theforeign-born child and the United States."'0 4 Justice Stevens wrote thatthese two interests are met by the provisions in section 309(a) of theINA. Regarding the child and the United States citizen father formingfamilial bonds, he articulated that "[i]f there is no reliable, contempora-neous proof that the child and the citizen father had the opportunity toform familial bonds before the child turned 18, Congress reasonablymay demand that the child show sufficient ties to this country .. .inorder to be a citizen. ' 05 The opinion also noted that the sex of theUnited States citizen parent was not determinative of the citizenship of achild under section 309 of the INA, but rather the "event of creating alegal relationship between the parent and child-the birth itself for citi-zen mothers, but post-birth conduct for citizen fathers and their off-spring" created a basis for citizenship. 0 6 Stating these government

99 Id.

'oo Id. at 432.

101 See U.S. CONST. amend. V.102 Miller, 523 U.S. at 435.103 Id. at 431.104 Id. at 438.105 Id. at 440.106 Id. at 443.

[Vol. 3:869


objectives as constitutional, Justice Stevens held that since CharlesMiller had not taken the affirmative steps required by section 309(a)(4)of the INA before Lorelyn turned eighteen, Lorelyn failed to acquireUnited States citizenship.

In a concurring opinion which upheld the ruling that Lorelynfailed to attain United States citizenship, Justice O'Connor, with whomJustice Kennedy joined, wrote that Lorelyn did not have standing toargue the discriminatory impact that section 309 of the INA had onUnited States citizen fathers. 10 7 Although Justice O'Connor argued thatLorelyn did not have standing, she suggested that the provisions of sec-tion 309 of the INA did not withstand the equal protection review theCourt applied to other statutes that arguably discriminate on the basisof sex.1°8

The dissent in this case argued that the provisions in section 309 ofthe INA discriminated on the basis of sex and the Court should recog-nize that Lorelyn succeeded in establishing her citizenship.10 9 JusticeGinsburg began her dissent by relating the history of women and theircitizenship rights in the United States.110 She later noted that the "stat-ute[] focus[es] upon two of the most serious of human relationships,that of parent to child and that of individual to the State." '111 Finally,Justice Ginsburg stated that in accordance with equal protection guaran-tees, the statute must be found to be unconstitutional because it "dis-criminate[s] on the basis of gender, making it significantly more difficultfor American fathers than for American mothers to transmit Americancitizenship to their children born out of wedlock." '112

'While the decision in Miller v. Albright failed to acknowledge thatLorelyn had acquired United States citizenship, the different opinionsseemed to suggest that the provisions of section 309 of the INA couldnot be upheld under equal protection analysis if a similar case were to bebrought in the future. 113 The Supreme Court in this case did not ad-

107 Miller, 523 U.S. at 447 (O'Connor, J., concurring). Justice O'Connor wrote that

"[w]hile it seems clear that the petitioner has a significant stake in challenging the statute and a

close relationship with her father, she has not demonstrated a substantial hindrance to her fa-

ther's ability to assert his own rights." Id.108 See id. at 452-53 (O'Connor, J., concurring).

109 See id. at 460-71 (Ginsburg, J., dissenting).110 Id.

111 Id. at 478.112 Miller, 523 U.S. at 481.

113 In Miller, a majority of the Justices agreed that the provisions of the Immigration and

Nationality Act § 309 could not withstand equal protection analysis because they discriminated

2006]

886 CARDOZO PUB. LAW, POLICY & ETHICS [

dress any theories of citizenship, nor did it take this opportunity to de-fine the term, as it is generally understood in the United States.Nevertheless, in light of this case, it seemed as though it was just amatter of time before the different requirements in section 309 of theINA would be eliminated due to their discriminatory nature.

B. Nguyen v. Immigration 6- Naturalization Service" 4

In 2001, the United States Supreme Court revisited the question ofwhether section 309 of the INA violated the Due Process Clause of theFifth Amendment as discriminating on the basis of sex in Nguyen v.Immigration &Naturalization Service.1 15 The facts in the case were sim-ilar to those in Miller, but the Supreme Court unexpectedly1 16 decidedthat the different standards established in section 309 of the INA with-stood equal protection analysis. 11 7

Tuan Anh Nguyen filed a writ of certiorari to the Supreme Courtalong with his United States citizen father, Joseph Boulais. Boulais wasan American citizen who traveled to Vietnam after being dischargedfrom the United States Army in 1963.118 Boulais had a relationshipwith a Vietnamese citizen resulting in Nguyen's birth in 1969 in Viet-nam.11 9 Boulais ended his relationship with Nguyen's mother, andfrom an early age Nguyen lived with his father and stepmother in Viet-nam.120 When Saigon fell in 1975, six-year old Nguyen escaped fromVietnam with his stepmother and reunited with his father who already

on the basis of sex. Miller, 523 U.S. at 451-52 (Justice O'Conner's concurrence, in whichJustice Kennedy joined), 460 (Justice Ginsburg's dissent, in which Justices Souter and Breyerjoined). Justice O'Connor, with whom Justice Kennedy joined, recognized that the statute maynot withstand the equal protection analysis, but did not feel the need to do such an analysisbecause she found that Lorelyn Miller had no standing to bring the claim. Id. at 445-53(O'Conner, J., concurring). Justice Ginsburg, with whom Justices Souter and Breyer joined,considered the equal protection argument and found that section 309 of the Immigration andNationality Act discriminated on the basis of sex, thus violating the equal protection guaranteesin the Due Process Clause of the Fifth Amendment. Id. at 460-90 (Ginsburg, J., dissenting).

114 533 U.S. 53 (2001).115 Id.116 In Miller, a majority of the Justices seemed to agree that the different standards in section

309 of the Immigration and Nationality Act would not be able to withstand equal protectionanalysis because they were based on stereotypes and "generalized classifications." Miller, 523U.S. at 452 (O'Connor, J., concurring); see also supra note 113.

117 See generally Miller, 523 U.S. at 53.118 Brief for Appellants at 4, Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53

(2001) (No. 99-2071).119 Id.120 Id.

[Vol. 3:869

2006] CITIZENSHIP AND IMMIGRATION

returned to the United States. 21 Nguyen was admitted to the UnitedStates as a refugee and adjusted his status to become a lawful permanentresident in 1975.122 During his childhood, Boulais provided financialsupport to Nguyen, but never formally established his paternity in ac-cordance with section 309(a) of the INA. 123

This case arose when Nguyen pled guilty to two felony charges in aTexas court in 1992.124 Since Nguyen retained only lawful permanentresident status 125 he was placed in deportation proceedings 126 where hewas ultimately ordered deported. On appeal to the Board of Immigra-tion Appeals (BIA), Nguyen claimed that he could not be deported be-cause he was a United States citizen. 127 While the appeal was pending,Boulais obtained an Order of Parentage from a Texas court stating thathe was Nguyen's father. 128 The BIA did not admit the Order of Parent-age into evidence and dismissed Nguyen's appeal. 129

In 2001, the United States Supreme Court determined thatNguyen had not acquired United States citizenship at birth and wasthus deportable. 13

' The Supreme Court did not acknowledge that Bou-

121 Id. at 5. Boulais had left Vietnam before Nguyen. Boulais had not been able to contact

Nguyen's biological mother and he was unaware of whether she survived the war in Vietnam.See id.

122 Id.123 Brief for Appellants at 5, Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53

(2001) (No. 99-2071). Boulais failed to establish that he was the biological father of Nguyenbefore Nguyen's 18th birthday. However, he later underwent a DNA test to confirm his pater-nity. Id.

124 Id. at 6.

125 At the time the charges arose, Nguyen was eligible to apply to be naturalized as a United

States citizen. See Immigration and Nationality Act § 316.126 Since Nguyen was not recognized as a citizen, the Immigration and Naturalization Service

(INS) instituted proceedings against him because he was deportable as an alien who had com-mitted a crime against moral turpitude and an aggravated felony. See Immigration and Nation-

ality Act § 2 12 (a)(2), 8 U.S.C. § 1182 (2003). For a definition of "aggravated felony," seeImmigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1 101(a)(43) (2003).

127 See Brief for Appellants at 6-7, Nguyen v. Immigration & Naturalization Serv., 533 U.S.

53 (2001) (No. 99-2071).128 Id. at 7. The Texas Court issued the Order of Parentage based on the results of a DNA

test that indicated that it was 99.98 percent certain that Boulais was Nguyen's father. Id.129 Id. After the BIA dismissed the appeal, Nguyen appealed to the United States Court of

Appeals for the Fifth Circuit and Nguyen and Boulais filed an action jointly to the District

Court for the Southern District of Texas requesting that it declare that Nguyen had been aUnited States citizen since birth. Both courts failed to decide in favor of Nguyen and Boulais,and Nguyen filed his writ of certiorari to the Supreme Court, who agreed to decide whetherNguyen had actually acquired citizenship at birth. Id.

130 See generally Nguyen v. Immigration & Naturalization Serv., 533 U.S. (2001).

888 CARDOZO PUB. LAW, POLICY 6- ETHICS J [

lais had raised his son, fulfilling the qualifications of section 309(a) ofthe INA, even though he did not formalize his actions. 131 Moreover,the Court did not recognize that Nguyen had lived in the United Statesfrom the time he was a child, and that he had substantial ties to theUnited States. Rather, the Court stated that "an individual seeking citi-zenship under [section 309(a) of the INA] must meet all of its precondi-tions, the failure to satisfy [section 309(a)(4) of the INA] rendersNguyen ineligible for citizenship." 132 In addition, the Court held that"the statutory distinction [in section 309 of the INA] is consistent withthe equal protection guarantee embedded in the Due Process Clause ofthe Fifth Amendment."1 33

Justice Kennedy, writing for the majority of the court, recognizedtwo governmental interests that were protected by the statutory distinc-tion embodied in section 309 of the INA. The first recognized govern-mental interest is "the importance of assuring that a biological parent-child relationship exists.' 1 34 In this case, Nguyen provided the courtwith an Order of Parentage, which stated that according to DNA test-ing, there was a 99.98 percent chance that Boulais was his father. 135

This DNA test appears to meet the first governmental interest profferedby the Court as well as the first requirement of section 309(a) of theINA. 1 36 Although Nguyen made this argument, the Supreme Court re-jected it, stating that mothers and fathers are not similarly situated uponthe birth of a child; as a mother's presence is required, but the father'spresence is not, thus biological proof of parenthood is necessary. 137 The

131 Section 309(a)(3) of the Immigration and Nationality Act requires in part that a "father

who is a U.S. citizen" agree to provide financial support to his child until the child reaches age18. Nguyen lived with Boulais when time he was very young in Vietnam and from the time hearrived in the United States at age 6. Furthermore the purpose of section 309(a)( 4 ) is that aUnited States citizen father acknowledges he is the father of his child, and Boulais raisedNguyen, which seems to signify that he acknowledged that he was the child's father, despite thefact that he never formalized such an acknowledgment in a United States court.

132 Nguyen, 533 U.S. at 60.

133 Id. at 57. Justice Kennedy wrote the opinion of the Court, holding that the distinction

did not violate equal protection guarantees. This was surprising because Justice Kennedy hadconcurred with Justice O'Connor in Miller v. Albright who seemed to write that section 309 ofthe Immigration and Nationality Act would not be able to withstand the appropriate equalprotection analysis. See supra note 113.

134 Nguyen, 533 U.S. at 62.135 Brief for Appellants at 7, Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53

(2001) (No. 99-2071).136 See Immigration and Nationality Act § 309(a)(1).

137 See Nguyen, 533 U.S. at 63.

[Vol. 3:869


Court noted that a facially neutral rule may not be feasible because fa-thers who are not present at birth would still be required to take someaffirmative step to acknowledge a blood link to the child; whereas amother would not be required to take such steps, because her namewould be on the child's birth certificate. 138 Finally, with regard to thisfirst governmental interest, the Court held that the distinction appropri-ately takes into account the inherent biological differences between menand women. Thus, with regard to the first governmental interest, theCourt found that the provisions in section 309(a) of the INA, despitetheir different treatment of United States citizen mothers and fathers,protected this interest.' 39

The second governmental interest that the Court announced is theimportance of the formation of a meaningful relationship between thechild and his United States citizen parent.140 The Court recognized thatforming a relationship with the citizen parent, in turn, leads to the for-mation of a relationship with the United States.' 4 ' The Court reasonedthat since a mother knows that a child is hers, she will have an opportu-nity to form a bond with him. Alternatively, a father is not granted thesame opportunity if he lacks knowledge of his paternity.142 Notwith-standing the Court's reasoning in this case, Nguyen was able to form arelationship with his father (although Boulais did not formally acknowl-edge him as required by section 309(a)(4 ) of the INA), but had nochance to form a similar relationship with his mother.

The Court also rejected the argument that DNA testing and otherscientific evidence establishes a United States citizen father's knowledgeof his child. The Court stated that biological evidence of parentage doesnot, by itself, create a meaningful relationship between a child and fa-

138 Id. at 64.

139 See generally id. at 62-64.140 Id. at 64-65. The Court stated that an important governmental interest supported by the

statutory distinction in section 309 of the Immigration and Nationality Actis the determination to ensure that the child and citizen parent have some demon-strated opportunity or potential to develop not just a relationship that is recognized... by the law, but one that consists of real, everyday ties that provide a connectionbetween the child and citizen parent, and . . . the United States.

Id.141 Nguyen, 533 U.S. at 68-69.142 This seems to relate to section 309(a)(4) of the Immigration and Nationality Act which

requires that a United States citizen father take certain steps to legitimate the child before thechild's eighteenth birthday, which seems to suggest that the father was able to form a meaning-ful relationship with his child before this age.

20061 889


ther in the child's minority.1 43 Moreover, the Court noted that if afather fails to meet the statutory requirements of section 309(a)(4) ofthe INA before his child reaches the age of eighteen, the child may seekto acquire citizenship as his own right, if he has substantial ties with theUnited States.144

Justice O'Connor wrote a vehement dissent criticizing the major-ity's equal protection analysis. 145 She recognized that Nguyen had beenin the United States long enough to form substantial ties with the na-tion and that his United States citizen father, Boulais, had raised himand acknowledged paternity despite his failure to take formal legalsteps.' 46 The dissent noted, with regard to the first governmental inter-est-establishing proof of a blood relationship between the child andthe United States citizen parent-that there is little the requirements ofsection 309(a)(4 ) of the INA do to meet that interest. 4 7 The argumentin the dissent continues, stating that it is "difficult to see how [section309(a)(4) of the INA]'s limitation of the time allowed for attainingproof of paternity furthers the assurance of a blood relationship."' 48

The dissent also noted that the first governmental interest can be met bythe requirements of section 309(a)(1) of the INA alone.' 4 9

The dissent determined that the second governmental interest metby the statute does not withstand equal protection analysis. While it isimportant for children to form a bond with their parents, which in turnleads to ties to the United States, the provisions in section 309(a)(4) ofthe INA do not ensure, in a sex neutral fashion, that such bonds havebeen secured.' 5 ° The dissent argued that even if forming such a bondbefore the child reaches eighteen is such an important government inter-est, "it is difficult to see how the requirement that proof of such oppor-tunity be obtained before the child turns 18 substantially furthers theasserted interest."' 5' Moreover, the dissent noted the fact that amother's presence at birth does not ensure that the mother will remainin her child's life long enough to form the substantial bond with which

143 Id. at 69.144 Id. at 71.145 Id. at 74-97 (O'Conner, J., dissenting).146 Id. at 85.147 Id. at 79 (O'Connor, J., dissenting).148 Id. at 80.149 Id.150 See Nguyen, 533 U.S. at 86 (O'Connor, J., dissenting).

151 Id. at 85.

[Vol. 3:869


the majority is so concerned. 152 One commentator remarked that"rather than upholding the Constitution's guarantees of equal protec-

tion [this] decision may serve to legalize long-standing stereotypes ofmen's and women's parental roles, obliging women to accept maternityat conception but enabling men to deny their paternity indefinitely."'' 53

This case illustrates that the conditions in section 309(a) of theINA for a United States citizen father to transmit citizenship to a childborn out of wedlock "may deny citizenship in cases where a legitimateparent-child relationship exists, thus defeating the very purpose [accord-ing to the Court] of the provision." 154 Nguyen's relationship with hisfather provides an example of the types of parent-child relationships thatwill suffer as result of the distinctions made in section 309 of the INA.Nguyen had lived with his father in the United States since he was sixyears old. Moreover, Boulais took care of Nguyen when he was an in-fant in Vietnam, and later when Nguyen arrived in the United States.Boulais took responsibility for his child, supported him, and in turn,Nguyen was able to create meaningful ties with both his biological fa-ther and the United States. This fulfilled the stated purpose of the stat-ute. Nevertheless, Nguyen was ordered deported as a result of theSupreme Court's ruling that the requirements of section 309 of the INA

served a substantial government interest and did not violate UnitedStates citizen fathers' rights to equal protection.

Despite the standards established by section 309 of the INA, theSupreme Court disregarded its governmental duties when it failed toaddress our country's notions of citizenship in its denial of citizenship toNguyen. The Supreme Court also failed to fulfill its duties by ignoringthe underlying definition of citizenship when it upheld the constitution-ality of section 309(a) of the INA.

I. THEORIES OF CITIZENSHIP

A. Republicanism

Citizenship in a republican polity is understood through active par-ticipation and engagement in the political community. 155 Republican

152 Id. at 86.

153 Chlopak, supra note 79, at 998.154 Id. at 986.

155 Spiro, supra note 31, at 1466; Bosniak, supra note 13, at 470; see also Introduction, supra

note 56, at 13 (explaining the difference between nationality and citizenship, stating that nation-

ality is where a person has membership affiliation, and that citizenship status confers specific

2006]

892 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 3:869

citizenship "views political participation as a committed engagement inthe life of the polity rather than as a self-interested protection of privateinterests."' 56 Through political participation, members of a republicancommunity can focus on the common good for the entire polity, ratherthan their own individual interests. I57 Under republicanism, it is im-portant that members of the polity understand their roles and obliga-tions within the community. They must be aware that they havereciprocal rights and obligations with the state, and they must also rec-ognize the connection between their individual interests and the com-mon good.151

There are four main components to republican citizenship: (1) arepublican citizen enjoys those rights that are necessary to carry out hisprivate ends while he performs his public role in society; 159 (2) a citi-zen's rights correspond with his own set of obligations to the polity; 60

(3) a citizen must actively defend the rights of others within his politicalcommunity; 6 ' and (4) a republican citizen engages formally and infor-mally in the political arena.162 A citizen in the republican sense must besurrounded by his own unique community. 16 3

political rights upon persons, such as voting rights); cf DAGGER, supra note 14, at 109 (warningthat in some polities "[t]here is simply no incentive to take an active, public-spirited part inpublic affairs when there is no reason to expect one's actions to make any difference in thoseaffairs and little reason to expect more than a few to join in cooperative efforts").

156 Gerald L. Neuman, Panel, Justifying U.S. Naturalization Policies, 35 VA. J. INT'L L. 237,240 (1994); see also DAGGER, supra note 14, at 12 (defining classical republicanism as placingthe greatest value upon civic virtue and public responsibility).

157 See ISIN & WOOD, supra note 21, at 9; see also DAGGER, supra note 14, at 99 (explainingthat "[c]itizenship was a way of life that require[s] commitment to the common good and activeparticipation in public affairs"); but see Michael Walzer, The Problem of Citizenship, in OBLIGA-TIONS: ESSAYS ON DISOBEDIENCE, WAR, AND CITIZENSHIP 209 (1971). Walzer warns that arepublican community would not want to be ruled by someone who knew nothing of the "artsof government" or commitment to the general will, who commonly conceived himself and wascommonly conceived to be a private man, and who was politically passive until he was randomlyselective to be political active. Id.

158 DAGGER, supra note 14, at 84.159 J.M. Spectar, To Ban or Not to Ban an American Taliban? Revocation of Citizenship &

Statelessness in a Statecentric System, 39 CAL. W. L. REv. 263, 275 (2003) (citation omitted).160 Id.161 Id.162 Id.163 Id. (citations omitted). Spectar explains that the community in the republican sense is

not [a]community as in formal organization, but [a] community with respect to any settingswhere individuals 'take[ I the practice of citizenship seriously."' Id. For a discussion regardingwhat it means to be part of a community in the communitarian sense, see infra text accompany-ing notes 188-212; but see ISIN & WOOD, supra note 21, at 1. Isin and Wood warn that "one


The main objective of a republican citizen is his participation in hispolitical community. Republican citizenship can only be "meaningfullypracticed within a distinct institutional context ... a formal, organizedterritorially-based community with some degree of sovereign-self gov-ernance." 164 In the republican political community, political goals arethe goals of the entire community and cannot be reduced to the individ-ual level; in order to satisfy political goals members of the polity mustthink on a level above their own individual interest and the interests oftheir community. 165 Therefore, members of the polity must learn tobalance their relationships between the government processes and theoutcomes those processes generate. 166 In order to balance this relation-ship, and since republicanism focuses on political participation, a personwho is completely dependent on another cannot successfully participateas an autonomous citizen. 67 Similarly, citizens must be able to fullyand freely participate in a polity without constraints. 168 Freedom meansthat citizens are free to participate in the community in ways that theydeem appropriate.16 9

Members of a republican polity must cooperate with one anotherso that their political aspirations and objectives will be met. In order tomeet their political aspirations, members of a republican polity mustparticipate in some type of dialogue, where they can voice their goals toone another. This includes dialogue between government officials andmembers of the polity, which creates a duty upon each of them to com-municate effectively to achieve the public good. Once each party has

must be wary of this notion of community in civic republicanism [because] it does not acknowl-

edge the novelty of modern democracy with its principles of pluralism, individual liberty, the

separation of church and state, and the development of civil society." Id. (citation omitted).164 Bosniak, supra note 13, at 475.

165 DAGGER, supra note 14, at 14. For example, one must not fall prey to corruption. Cor-

ruption in the republican sense means neglect of one's civic duties as a citizen in furtherance of

one's own personal interests and goals. Id.166 Schuck, supra note 19, at 171.

167 For a discussion about the importance of autonomous citizens, see generally Dagger, supra

note 14.168 DAGGER, supra note 14, at 15.169 Id. In a republican community, if "self-government requires the occasional sacrifice of

one's personal interests, so be it, for the sacrifice is necessary not only in the name of civic dutybut also to preserve the liberties of the citizen of a self-governing polity." Id. Dagger also notes

that "when appeals to civic virtue threaten to jeopardize individual rights, the claims of auton-

omy remind us that the body politic ought to be a cooperative enterprise composed of individu-

als who have a right to lead a self-governed life." Id. at 18; see also Bosniak, supra note 13

(discussing importance of self-governance in a republican community).

2006]

894 CARD OZO PUB. LAW, POLICY & ETHICS J [Vol. 3:869

stated their individual aspirations, these can then be transformed intothe objectives of the community. This type of dialogue can be labeledas "public reason." 171

By incorporating public reason into the polity through politicalparticipation, republicanism ensures that various political views anddoctrines are accepted throughout the nation. Through public reason,the outcome of deliberations will more accurately comport with thegeneral will of the members of the polity, 171 and such "law sanctionedby the general will promotes everyone's interest qua citizen."' 172 Publicreason leads to compromise in the political process; the republican pol-ity is able to maximize civic agreement within its community.1 73

Republican citizenship also rests on principles of consent. Mem-bers within a political community must consent to participate, and thecommunity must permit their political participation. Republican citi-zens recognize that by virtue of their citizenship they are permitted toparticipate, but that citizenship "does not require one to set aside one'sprivate interests when participating."' 74 When a republican citizenchooses to participate in political life, he recognizes that some of hisown interests may clash with the general will, and as a virtuous citizenhe will have to sacrifice some of his personal interests for the commongood. 175

One commentator suggests that consent and participation must beequal among citizens-citizenship should not rest on gradations, 176 in a

170 See BEINER, supra note 19, at 57. Beiner explains that public reason is an "attempt to

justify political and legal norms in a way that doesn't presuppose a singular comprehensivedoctrine, but rather cuts across a wide range of divergent comprehensive doctrines." Beinercontinues to state that regardless of whether the polity embodies a notion of public reason, thepolitical order in such a society will reflect the outcomes of how the community thinks public lifeshould be organized. These outcomes, moreover, will ultimately indicate the society's judg-ments about what it thinks is a desirable polity, morally and philosophically. Id. at 58.

171 DAGGER, supra note 14, at 88.172 Id. at 86. Dagger notes that when laws comport with the general will they do more than

grant equal consideration to everyone; they truly are in everyone's interest." Id.173 See id. Dagger also uses the term "civic virtue" as the key concept of classical republican

thought. Cf id. at 14. Quoting Shelley Burtt, Dagger defines civic virtue as "'the disposition tofurther public over private good in action and deliberation."' Id. Dagger examines the elementsof civic virtue in the republican sense by noting those things that republican citizens feared:corruption and dependence, and the importance of independence and liberty. Id. at 14-15.

174 DAGGER, supra note 14, at 95.175 Id. at 100.176 See KETrNER, supra note 22, at 10. See also Walzer, supra note 157, at 208. Walzer

explains that "the right to participate in political decision making may be protected by the state,and even institutionalized in . . . [a] kind of electoral process" in the republican state. Id.


republican community there can be no second-class citizens. 177 Al-though there are no second-class citizens in the republican polity, repub-licanism still encompasses some form of exclusivity by only permittingmembers who belong to the community to participate. 178 Members of arepublican polity accept the rules prescribed by the political body and

established through political associations. 179 Accordingly, people in arepublican polity demonstrate that they understand the nature of therelationship that they enter into with the state, along with the rights thatthey hold against the state, and the obligations they owe to it.18

1 Mem-bers of the government in republican communities understand their re-lationships with the people in the polity and the duties that they owe tosuch members.

Recognition of this special relationship allows the members of arepublican polity to work together to meet their common goals and"pursue in peace their personal interests.""'8 Citizens also work together

to ensure that everyone within the community obeys the rules of thepolitical order. 182 Those in power control the general will, whichshould be thought to encompass all people within the community andnot just themselves. Only those who choose to participate as republican

citizens control the political process, and make the decisions that affectthe noncitizens within their community.183 The general will should en-

compass all members of the community because, as Walzer pointsout,1 8 4 there are members of the community who choose not to partici-pate, just as there are aliens in the community who are not permitted toparticipate. In order to maintain the equilibrium in society, those inpower must recognize the position of the members in the communitywho choose not to participate. This then leads to the notion that, in the

177 Walzer, supra note 157, at 215. Walzer warns that as the number of participants in a

political community increases, their participation may have less meaning or become meaning-

less. He suggests that "the easier participation becomes, the less serious it will be and the less

freedom and virtue, and power it will express." Id.

178 This conforms to the general definitions of citizenship that I explored at the beginning of

this Note. See supra text accompanying notes 13-21.

179 ISIN & WOOD, supra note 21, at 12.180 DAGGER, supra note 14, at 46.181 Id. at 47.

182 Id.

183 Schuck, supra note 19, at 165.

184 Walzer warns that there are many citizens who choose not to participate in the political

community, and as a result they are treated like aliens, who can only enjoy common liberties.

See Walzer, supra note 157, at 210.

2006] 895


republican sense, the people making the laws should be thinking of thecommon good of society, and not just that of particular citizens orindividuals.

The legislators' role in the political community is to ensure that thelaws it establishes prevent the types of abuses that republicans fear, 185 aswell as promote independence.186 As such, the courts' roles are to up-hold such laws that do not violate these three principles, and do notabuse the republican system.

In accordance with republican values, American politicians shouldconsider the common good in the United States, including the welfareof any children that United States' citizens may raise while they livewithin the political community. When Congress enacted section 309(a)of the INA it created a law that was inconsistent with its role in a repub-lican system. In the first instance, Congress failed to adequately protectUnited States citizen fathers and their children. The relationships be-tween Nguyen and his citizen father, Joseph Boulais, and Lorelyn Millerand her citizen father Charles Miller, demonstrate the way in which therepublican community failed when it refused to grant citizenship toNguyen and Lorelyn. In addition to Congress, the Supreme Court didnot uphold its duty to protect people within the republican communityfrom corruption. By upholding the statute, the Court failed to recog-nize that there was no corruption in either case. Neither Miller norBoulais wanted to circumvent their civic duties in order to further theirown interests. As proof of this, Miller agreed to obtain a paternity de-cree from a court in order to give Lorelyn a chance to live with him.Similarly, Boulais took care of Nguyen from the time he was an infant,and raised him into adulthood in the United States. Despite the factthat both men failed to comply with the rather arbitrary standards re-quired by section 309(a) of the INA, they did not fail to adhere to theirduties as republican citizens. Indeed, one could argue they sought tofulfill those duties by helping their children obtain citizenship. Never-theless, the Supreme Court, in upholding section 309(a) of the INA, hasrefused to reveal the contradiction within the statute and Congress' fail-ure to meet its republican duty. 18 7

185 See supra text accompanying notes 166-170.186 See DAGGER, supra note 14, at 95. See also Walzer, supra note 157, at 209 (suggesting

that ordinary men in a community have no political life at all, but rather enjoy their commonliberty in "their shops, churches, and with their families").

187 Since Charles Miller dropped out of the case before it reached the Supreme Court, it is

difficult to say that the Supreme Court failed to fulfill its duty in Miller, though it failed to

[Vol. 3:869


Not only did the Supreme Court Justices decide these cases incor-rectly based on their duties as republican citizens in a republican govern-ment, they also decided erroneously based on Boulais and Nguyen'spositions in the political community. Boulais was an American citizenwho served the United States in Vietnam. Moreover, he was his son'sprimary caregiver, creating lasting bonds between him and Nguyen, andNguyen and the United States, thus, he met the purpose of the statutein question. He only failed to meet the arbitrary requirements requiredin section 309(a) of the INA that are not required of all citizens equally.

This raises another manner in which this statute is at odds withrepublican purposes. Section 309 of the INA does not treat all citizensequally. Rather, it treats United States citizen fathers differently fromUnited States citizen mothers, creating two types of second-class citi-zens: United States citizen fathers and their illegitimate children. Basedon this inherent inequality and its failure to meet the requirements ofrepublican civic virtue, the Supreme Court should have ruled that sec-tion 309(a) of the INA is unconstitutional.

B. Communitarianism

Communitarianism differs from republicanism insofar as it focuseson an individual's capacity as a member within a specific community,rather than being strictly bound to the government or the authorities.1 88

A communitarian citizen is bound not to the government, but rather tohis fellow citizens.18 9 The communitarian viewpoint "emphasizes thecultural or ethnic group, solidarity, among those sharing a history ortradition."' 90 Moreover, an individual in the communitarian polityidentifies his membership through groups such as family and other vol-untary associations, and by bounds of cultural traditions and na-

fulfill its duty in Nguyen v. Immigration & Naturalization Service, 533 U.S. 53 (2001). SeeMiller v. Albright, 523 U.S. 420, 426-27 (1998) (explaining that Charles Miller dropped out ofthe case before it reached the Supreme Court).

188 Note that a citizen in the republican sense is bound to the authorities and government

only to the extent that the government protects their republican citizenship. Through the gov-ernment and political participation, a republican citizen's goals are effectuated. See supra textaccompanying notes 155-186.

189 See Walzer, supra note 157, at 207.

190 BEINER, supra note 19, at 30; see also ISIN & WOOD, supra note 21, at 3 (explaining that

citizenship can be viewed as a form of identity that is "based on social reciprocity and commoninterests, which may themselves be based on a sense of tradition, ethnicity or lifestyle, andheightened by systems of beliefs, ceremonies and symbols").

20061

898 CARDOZO PUB. LAW, POLICY & ETHICS [3

tionhood."5 Once individuals are able to form their group identity, 92

they are actively able to participate in the polity.

The focal point of communitarianism lies with the people whosurround the individual. In a communitarian polity, freedom andequality can be meaningfully practiced once the members of the polity,with a common identity, share common virtues and goals. 193 Membersof the community cannot and do not view themselves individually, butrather, they exist as part of a larger identity, such that individuals have acultural identity and community that pervades the entire nation.194 Thecommunitarian perspective has two appealing factors. 195 First, individ-ual identity depends on a community. No individual is entirely self-created, and the "conception[s] of community recognize and build uponour social or communal nature." 196 The second appealing factor of thecommunitarian perspective is that through the bonds with their com-munities, individuals create a meaningful bond between themselves andtheir community. 197 Professor Dagger explains that since individualidentity depends, in part, on an individual's identity within his commu-nity, there will be no free-rider problem." 8 Insofar as an individualunderstands that what is good for the community is good for him as

191 BEINER, supra note 19, at 83-84; but see ISIN & WOOD, supra note 21, at 42. Citing Iris

Young, Isin and Wood suggest that social groups only partially constitute individuals identitiesand common goals; because the meanings of the members' cultural forms, social situations andhistory have been forced upon the members. Id. (citing IRIS MARION YOUNG, JUSTICE AND THE

POLITICS IN DIFFERENCE 44 (1990)).

192 See ISIN & WOOD, supra note 21, at 8 (stating that how loyalties and obligations are

formed in the communitarian sense to the state, remains unanswered and that "the debate re-volves around the extent to which individuals are formed under the influence of the commu-

nity"); see also BEINER, supra note 19, at 28 (warning that "the more citizens become fixated on

cultural differences within the political community, the more difficult it becomes to sustain anexperience of common citizenship").

193 Max Pensky, Migration and Solidarity: Studies in Immigration Law and Policy, in THE

ENDS OF SOLIDARITY 32 (2002) (unpublished manuscript, on file with author).194 Note, The Functionality of Citizenship, 110 HARv. L. REv. 1814, 1814 (1997); but see

BEINER, supra note 19, at 25 (warning that that the community itself must assimilate to someidea of a nation-state, in order to meaningfully participate in the political realm); DAGGER, supra

note 14, at 55 (arguing that "we should beware of claiming that every person who is formed or

constituted to a significant extent by a community, culture, or civilization truly has an obliga-

tion to belong to it").195 DAGGER, Supra note 14, at 50.

196 Id.

197 Id.

198 Id.

[Vol. 3:869


well, he will also understand that if he does not participate in the com-munity, the common good will be diminished. 199

Citizenship can be understood as a valuable resource for "collectiveidentity,* common virtues, and shared goals that provide the necessarycontext within which the liberal ideals of freedom and equality2 0 can bemeaningfully practiced."' ' Citizenship in the communitarian senseevokes a feeling of belonging in all facets of a community. 20 2 Moreover,people often maintain greater feelings of allegiance toward members oftheir particular community than they do towards the nation as awhole.20 3 Rather than viewing themselves as individuals, members ofsociety conceive of themselves and their individual identities as beingpart of a specific community, even if they do not explicitly conceive ofthemselves as communitarians. 2 4 Nevertheless, citizens recognize thepolitical community as instrumental in helping their local communitiescreate a meaningful collective identity.2 5 This means that communitar-ian citizens need to work with their government in order to reach agree-ments about their concerns. The government, including the courts, inturn, must protect communitarian concerns and community identitiesin order to ensure they remain meaningful. For example, denying rightsto some members of the community or negating the importance ofsome communities' laws and traditions would be a violation of the gov-ernment's communitarian duties.

199 Dagger writes, "[I] ndividuals will see the public good simply as the good, with no consid-eration of how they might benefit personally by doing or giving less than the community expects

of them." Id.200 See infra text accompanying notes 217-246 for a discussion about liberalism and its ideals.

201 Pensky, supra note 193, at 31-32.

202 Bosniak, supra note 13, at 479.

203 Id. at 481; cf Legomsky, supra note 14, at 291 (explaining that citizenship in the commu-

nitarian sense "symbolizes the individual's relationship to the larger community"); BEINER, supranote 19, at 25 (suggesting that the nation at large can also be defined in the communitariansense, as the "development of a people's destiny.., embracing shared language, shared associa-

tions, shared history, and a common culture").204 ISIN & WOOD, supra note 21, at 8 (citation omitted).

205 BEINER, supra note 19, at 31. Beiner labels the communitarian's political goal, to protect

the collective identity as nationalism. Id. at 31. He continues to state that nationalism, in thecommunitarian sense "seeks to give the group primacy over the individual." Id. at 34; see alsoDAGGER, supra note 14, at 58. Citing Charles Taylor, Dagger points out the importance ofreciprocity in a communitarian society. However, reciprocity is understood by members of thecommunity as "a matter of contributing to what they can to the community and receiving whatthey need from it," rather than "as a matter of benefits, burdens and fair treatment." Id. (authorcredits David Miller without citation).

2006]


From a communitarian perspective, citizens are understood as"member[s] of a political community, who [are] entitled to receive bene-fits provided by the state, ... and expected to fulfill certain 'com-mon expectations' and responsibilities that are appurtenant to thatmembership. 2 6 In a communitarian polity, members of a group de-cide together the type of protection they will receive from the govern-ment. In turn, the group has standing in court against the state.2 °7

Citizens within these groups then play a role in forming state policies.20 8

One commentator labels this sort of relationship with the state andcommunities as a "civil society. "209 He suggests that active involvementwithin these communities, which are composed of voluntary actorsoutside of the sphere of the state, creates a superior form ofcitizenship.210

A newcomer to a communitarian society, realizing the importanceof the community, must assimilate in order to participate in communityactivities. Only when an individual successfully assimilates can the soci-ety achieve its common goals and become effective.211 Since newcomerswill be able to assimilate into communities, resident immigrants will notbe seen as outsiders, but rather as community members subject to thesame rules and government as the citizens.212 Therefore, immigrants incommunitarian polities who have successfully assimilated should be af-forded the same protection as citizens in the community.

206 Spectar, supra note 159, at 271; see also Walzer, supra note 157, at 227 (suggesting that

citizenship in the communitarian sense "is possible only if there are other groups than the statewithin the state, and it [citizenship] is fully accepted only by joining other groups along with thestate").

207 Walzer, supra note 157, at 218. Walzer also suggests that members of these communities

are safer than they would be if they were not in the community. He contends that a "citizen is

safer . . . in his groups, safer from bureaucratic neglect or abuse, safer also . . . from socialoppression." Id. at 224.

208 Id. at 161 (stating that a citizen's role in shaping state policies can be either informal or

official).209 BEINER, supra note 19, at 23.210 Id.; but see ISIN & WOOD, supra note 21, at 20 (suggesting that despite the fact that a

common identity leads to the formation of groups, it may not lead to a valid claim for legal

entitlements).211 See Schuck, supra note 19, at 171 (defining an effective society as "one that can accom-

plish its common goals, facilitate the private ends of its members, and nourish its system ofvalues..."). He continues to state that in order to effectuate this society newcomers must have

achieved some degree of assimilation. Id.212 See Aleinikoff, U.S. Citizenship Policy, supra note 14, at 171.

[Vol. 3:869


In the aforementioned case, Nguyen successfully assimilated intohis father's Texas community in the United States after moving fromVietnam to the United States at the age of six. Nguyen presumablyassociated himself with his father's community since it was the commu-nity in which he was raised. By the time Nguyen was old enough tounderstand the concepts of loyalty surrounding notions of citizenship,he presumably also conceived of himself as an American citizen. 213

Since communitarian citizenship is embodied, in part, through acitizen's "relationship with .. .and immersion in the society's history,traditions and core assumptions and purposes, ' 214 the question ofNguyen's citizenship may arise due to his disregard for society's stan-dards, i.e., his felony conviction. Nevertheless, the only society thatNguyen has ever remembered is the one in which he grew up in the

United States. After leaving Saigon, he had no contact with his biologi-cal mother, and neither he nor his father knew if she was even alivewhen Nguyen was deported.215 Nguyen formed his individual identitybased on his experiences with respect to the community in which hegrew up and what he learned from his United States citizen father.Since this was the only community Nguyen knew, he was entitled toprotection as if he were a United States citizen.

Lorelyn Miller, on the other hand does not present as strong a caseas Nguyen, an alien who clearly assimilated into the United States.Lorelyn Miller arrived in the United States to be reunited with her fa-ther after she turned eighteen and had lived abroad her entire life.216

Regardless, her father as a communitarian citizen had loyalties to hiscommunity and his community had an obligation to protect him. Inso-far as Lorelyn and Miller recognized themselves as a familial commu-nity, evidenced by Miller's agreement to help Lorelyn fight for hercitizenship and obtain a paternity decree, the Supreme Court failed givesubstantial meaning and recognition to such bonds. Moreover, theCourt never gave Lorelyn a chance to assimilate into her communitywith her father.

By refusing to grant Nguyen and Lorelyn Miller citizenship, theSupreme Court failed to protect community rights-in particular, those

213 See Aleinikoff, Theories of Loss of Citizenship, supra note 18, at 1494.214 Id.

215 Brief for Appellants at 5, Nguyen v. Immigration & Naturalization Sent., 533 U.S. 53

(2001) (No. 99-2071).216 See supra text accompanying notes 89-95.

2006]

902 CARDOZO PUB. LAW, POLICY & ETHICS I o

of familial communities. The Supreme Court upheld section 309(a) ofthe, INA despite the fact that the statute undermines communitarianfamily values. Rather than promoting assimilation into a community,the Nguyen decision suggests that children born out of wedlock toUnited States citizen fathers cannot form their individual identity basedon their family, because without the formalities dictated in section309(a) of the INA, they are not really members of any community, nomatter how many ties they have with their father or the United States.This elucidates the irony portrayed in the introductory hypothetical-achild born out of wedlock to a United States citizen mother is a citizenregardless of the ties or bonds with the community into which she hasnot yet assimilated.

C. Liberalism

Liberalism focuses on individual rights in order to define relation-ships between members of society and the government. Liberal citizen-ship can be defined as a "vehicle for protecting rights and advancingindividual interests, as well as allowing for the full expression of individ-ual identities.12 17 Since rights are superior to the polity, citizenship canbe understood in the liberal sense as those rights that specifically protectthe individual.218 Citizenship among members of a liberal polity is con-ceived as an individual's identity distinguished from all others. 219

Liberalism is similar to communitarianism in the sense that it con-stitutes a view of citizenship as rights that leads to "opportunities forparticipation that delineate the scope of sociopolitical membership in-side a community. "220 Rights are the defining feature of citizenship inthe liberal sense, thus those who possess certain rights are entitled toenjoy citizenship.22' Moreover, every human being is entitled to rights,at least in the most basic sense. There are certain fundamental rights222

217 Spiro, supra note 31, at 1474; see also ISIN & WOOD, supra note 21, at 45. Citing JacobT. Levy, Isin and Wood explore eight classifications of right-claims that individuals in a liberalsociety may have. Id.

218 ISIN & WOOD, supra note 21, at 7.219 Id. at 12.220 Spectar, supra note 159, at 272.221 Bosniak, supra note 13, at 463-64; see also DAGGER, supra note 14, at 25 (discussing

individual rights). For example, Dagger suggests that the claim that every person has rights byvirtue of being a human being, entails a necessary conjunctive belief in equality and human

rights. Id. at 19.222 While the liberal ideal suggests that there are certain fundamental rights bestowed on all

humans by virtue of the fact that they are human beings, it is difficult to define in concise terms

[Vol. 3:869


conferred upon all humans. Dagger suggests that we confer these rightsupon others only because "we must have a right in order to grant aright. "223

Since liberalism focuses on individuals' rights within a society,members of the polity are able to transcend their community ties224 to

further their own interests. Rather than focusing their energies on thecommon good of the community at large, members of a liberal statefocus on their own interests. Individuals' roles in the political commu-nity, therefore, reflect their desires to give their own lives meaningwithin the polity.22 5 However, rights in a liberal community, like theduties of republican citizens, are reciprocal; everyone has the same rightsand duties.226 Every person has a duty to all other people to ensure thatevery right is protected and every person may hold that right against thecommunity and government.227 This also means that the government,including the courts, has a duty to protect these rights in a mannerconsistent with liberalism.

In a liberal polity, the government's role is to protect its citizensand preserve their rights; citizenship occurs in a nation-state that is boththe source and the guarantor of rights. 228 As it provides protection forindividual rights, the government has a duty in the liberal polity to treatall similarly situated individuals equally.229 This governmental duty toall members of the community suggests the importance of upholdingequal protection rights in all matters. Professor Aleinikoff points outthat "calling citizenship a 'right' gives it weight; it shifts the burden to

these fundamental rights. See e.g. Rachel Baskin, Examining the Relationship Between EconomicGlobalization and Human Rights, in JUSTICE FOR ALL: ISSUES IN POLITICAL PHILOSOPHY 132-39 (Steven P. Scalet ed., 2002).

223 DAGGER, supra note 14, at 26.

224 See BEINER, supra note 19, at 30.225 Id. at 31. Beiner continues to explain that "[l]iberalism seeks to give the individual pri-

macy over the group, even at the price of alienation from any and every group identity." Id. at33; see also Walzer, supra note 157, at 215.


227 Id. Dagger explains that "[a]ll human beings have general rights against and correspond-

ing duties to all other human beings .. " Id. at 46.228 Bosniak, supra note 13, at 466. Bosniak continues with a caveat however, that "rights are

not the sole measure of citizenship." Id. at 470. See also David A. Martin, New Rules on Dual

Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 GEO. IMMIGR. L.J. 1(1999). In this article, Martin explains that, when we speak about citizenship in the legal sense,

we only refer to its formal dimensions in the form of "a recognized relationship between thecitizen and state that carries with it certain reciprocal rights and obligations." Id. at 14.

229 Schuck, supra note 19, at 164.

2006]

904 CARDOZO PUB. LAW, POLICY & ETHICS J V

the government to come forward with compelling reasons for its actionsthat abridge or deny citizenship." '230 Citizenship centers "on whom theState considers a citizen and the formal basis for the rights and duties ofthe persons in the State. '231 The state has control over whom it deems acitizen as well as the duties a citizen owes to the state.

There are three fundamental principles which a liberal governmentmust provide and protect: (1) equality, whereby the government has totreat individuals who are similarly situated in the same way232 and affordthem the same rights; (2) due process, such that the government is re-quired to treat individuals over whom it exercises power fairly;233 and(3) mutual consent by which membership in the political communityrests on the consensual relationship between the individual and thestate. 234 By protecting these three values, the government ensures that itprovides protection for individuals' rights and liberties, so they can ef-fectively participate in the political sphere.

Individuals' rights can be further explained by the way they areemployed in the political sphere. Using H.L.A. Hart's categories, 35

Professor Dagger explains two different categories of rights that individ-uals may possess. Individuals may have special rights, which "arise fromspecial relationships between the specific individuals, with promises andcontracts providing the standard examples of these relationships." 236

On the other hand, individuals may possess general rights, which aredefined as rights that all individuals hold against everyone.2 37 Whereasit is easy to understand that human beings have general rights becausethey are rights held against everyone, it is more difficult to understandthe circumstances where individuals enjoy special rights. Dagger ex-plains that we enjoy special rights to the extent that we enter into thosespecial relationships that require a promise or participation.238 For ex-ample, the ability to participate in a political community is a special

230 Aleinikoff, Theories of Loss of Citizenship, supra note 18, at 1484 (citation omitted).231 Spectar, supra note 152, at 271.

232 Schuck, The Devaluation of American Citizenship, supra note 19, at 163.

233 Id.

234 Id.

235 See H.L.A. HART, THE CONCEPT OF LAw (2d ed. 1994).


237 Id. This idea of general rights is very similar to Isaiah Berlin's notion of negative liberties.

ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118 (1969).238 DAGGER, supra note 14, at 46.

[Vol. 3:869


right. More basically, parties that enter into a contract each hold specialrights against the other with respect to the terms of the contract.

Because liberalism focuses on the rights and freedoms of the indi-viduals in society, it follows that individuals have the right to choosetheir level of participation in the community. They can determinewhether they want to participate, and if they choose not to do so, theircitizenship is not jeopardized.2 39 Guided by their desires, liberal citizensare motivated to participate in their community in order to further theirown interests.

Specifically, liberalism prevents families from being separated byimmigration barriers because it respects family unity.24 It respects fam-ily unity insofar as it permits children born abroad to be citizens in aland where their family members are citizens. 2 4

' As such liberalism pro-tects families from being torn apart. Since this theory is concerned withthe rights and the treatment of people in a liberal society, a liberal gov-ernment would be reluctant to create barriers that would deprive chil-dren born to citizens, regardless of the place of birth or of their ability toexercise the same rights as their parents.242 Liberalism tries to fosterrelationships between individuals within a family. However, "a liberalpolity made up of free and equal citizens rests upon the existence ofoutsiders who are refused a share of the political community. 243

Citizens are free "in that they conceive of themselves and of oneanother as having the moral power to have a conception of the good. 244

Furthermore, citizens take responsibility for their goals. 24 5 They partici-pate in a liberal society in order to fulfill their need and desire to maxi-mize their own self interest.246 This reasoning suggests that in the twocases, Boulais and Miller's interests in conferring citizenship upon theirchildren were not protected when the Supreme Court upheld section309(a) of the INA. Boulais took responsibility for his son from the timehe was an infant, and cared for him when he arrived in the UnitedStates. Moreover, Boulais upheld the liberal concept of the good bycaring for his son. While not a caregiver for his child, Miller, agreed to

239 ISIN & WOOD, supra note 21, at 7.

240 Neuman, supra note 156, at 249.241 Id.242 Id.243 Pensky, supra note 193, at 14.244 Spectar, supra note 159, at 273.

245 Id.246 Id.

2006] 905


help Lorelyn in her pursuit of citizenship, and obtained a paternity de-cree to help her fight for citizenship. Despite Boulais' and Miller's ef-forts to comport with the duties of liberal citizens, the Supreme Courtdenied both Boulais and Miller the same regard (by refusing to fulfilltheir liberal duties) when it refused to recognize their relationships withtheir children in which they both shared special rights.247

Since liberalism, like communitarianism, looks for some notion ofmembership in a community, it is important to note that neitherLorelyn nor Nguyen were outsiders in the liberal sense. AlthoughLorelyn appeared to be such an outsider, she had a right to have theopportunity to form a relationship with her father when she arrived inthe United States. Nguyen, on the other hand, was never an outsider tothe community; he was a member. From the time he arrived in theUnited States when he was six years old, his father cared for him, raisedhim, and supported him. Nguyen was as much of a participant in thepolitical community as a child who was born on American soil. 248

Finally, under the liberal theory, the United States should haveprotected Nguyen so that he was not forced to return to a foreign coun-try that he knows little about 24 9 and to which he has no connection.Since liberalism is concerned with basic human rights,25 ° section 309(a)of the INA should have been read by the Supreme Court in a mannerthat would prevent statelessness. The current version of the statute doesnot successfully prevent statelessness, and cannot be upheld under anyliberal theory. If a father fails to take the affirmative steps required bysection 309(a) of the INA a child who grows up in the United States,knows the United States as his own community, and perceives himself asa United States citizen, based on the citizenship status of his father,could be left without citizenry in any state. This scenario could occur ifthe father failed to take the affirmative steps required by section 309(a)of the INA and a court found that the child should be deported to a

247 See supra text accompanying notes 235-38 for an explanation of special rights.248 See Schuck, supra note 19, at 168. Schuck explains the problem with recognizing aliens

in the same class as citizens, stating that many do not really consent to citizenship, despite thefact that in the liberal sense it appears as though they have consented. He supports this state-ment by offering that many aliens who are eligible for naturalization fail to do so, and that thosewho do decide to naturalize do so well after they become eligible. This implies that if aliensreally were consenting then they would have naturalized when they became eligible, if they evernaturalized at all. Id.

249 Lorelyn did not have the same problem in this case, since she lived in the Philippines for a

number of years before coming to the United States to reunite with her father. Id.250 See supra note 226.

[Vol. 3:869


country where citizenship is conferred through fathers.25' In such acase, the child would not be able to return to the country in which hewas born, because that country does not recognize him as a citizen, norwould he be allowed to remain in the United States, merely because hisfather failed to take the arbitrary steps mandated by section 309(a) ofthe INA. This type of situation should be avoided in a liberal polity,but section 309 of the INA fails to provide this type of human rightsprotection to biological children of United States citizen fathers whoface such a predicament.252

IV. CONCLUSION

In order to uphold our country's notion of citizenship-whetherwe chose to view it in republican, communitarian, or liberal terms-it isevident that section 309(a) of the INA undermines our nation's mean-ing of citizenship. It is also evident that the Supreme Court has de-clined to examine the meaning of citizenship, and affords Congressenormous deference in its determinations of who can qualify to becomea citizen.253 Rather than protecting members' rights, section 309(a) ofthe INA defeats our understanding of citizenship in accordance withthese three theories. Therefore, Congress must amend section 309(a) ofthe INA in a way that is compatible with each of these theories, whileprotecting equal protection concerns.

In the republican sense, Congress should ensure that United Statescitizen fathers are no longer treated as second-class citizens, and theirrights as citizens are protected; it should treat United States citizenmothers and fathers equally. In order to promote the common goodCongress should ensure that children and parents are able to form themeaningful bonds about which the Supreme Court was so concerned inNguyen v. Immigration 6- Naturalization Service2 54 without the worrythat their child will one day be deported because they failed to takecertain required arbitrary steps before their child turned eighteen.

251 Citizenship in Nepal is conferred through Nepalese fathers. See U.S. Country Reports on

Human Rights Practices, Nepal, 2003, available at http://www.state.gov/g/drl/rls/hrrpt/2003/

27949.htm. This Country Report explains that the "Citizenship Law discriminates against for-

eign spouses of female citizens, and denies citizenship to the children of female citizens married

to foreign spouses, even if those children are born in the country." Id.252 See Chlopak, supra note 79, at 967 for further discussion about the problem of Immigra-

tion and Nationality Act §309 and its failure to prevent statelessness.253 See Fiallo v. Bell, 430 U.S. 787, 792 (1977).

254 See generally Nguyen v. Immigration & Naturalization Serv., 533 U.S. 53 (2001).

20061


In addition, Congress should amend section 309 of the INA tocomport with communitarian standards by recognizing that childrenwho come to the United States and live with their United States citizenparent have either already assimilated into the community, or have in-tentions to assimilate in order to be with their parent. It should amendthe law to encourage parents and children to form their own familialbonds.

Finally, Congress should amend the law to comply with the liberaltradition by ensuring that the law equally protects the rights and inter-ests of all the individuals in society, including both children and parents.Rather than treating United States citizen mothers and fathers who havechildren out of wedlock differently, Congress should ensure that therights of fathers and mothers are protected equally. Moreover, the Con-gress must protect the interests of children, like Nguyen and Lorelyn,who already view themselves a part of the community that a liberal gov-ernment has a duty to protect.

Congress must review section 309(a) of the INA and consider itsinconsistencies based upon the traditional notions of republicanism,255

communitarianism,256 and liberalism.257 In applying these theories andtheir principles, Congress must amend the law to ensure that the rightsof all United States citizens are protected, regardless of whether they aremothers who have had children out of wedlock or fathers who havedone so. Under a new standard comporting with these theories, bothCharles Miller and Joseph Boulais would have been able to confer citi-zenship upon their children, and neither Lorelyn Miller nor Tuan AnhNguyen would have been deported. Congress, in amending section309(a) of the INA, would prevent such tragedies from occurring in thefuture.

255 See supra text accompanying notes 155-86.256 See supra text accompanying notes 188-211.257 See supra text accompanying notes 217-46.

[Vol. 3:869

Documents

CITIZENSHIP THEORIES, IMMIGRATION AND ... THEORIES, IMMIGRATION AND NATIONALITY ACT SECTION 309 & NGUYEN V. INS: HOW THE SUPREME COURT GOT IT WRONG Rachel Baskin* INTRODUCTION Suppose