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Citizenship Theories, Immigration and Nationality Act Section 309 & Nguyen v. Ins: How the Supreme Court Got It Wrong

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, Amanda Hornung 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.

Introduction.

Suppose Anne was born in Vietnam to Jim, who is a Vietnamese citizen and Marie, who is a United States citizen. Jim and Marie were never married. Anne never traveled to the United States. From the time she was an infant she lived with her father and his wife in Vietnam. Anne thinks her mother returned to the United States, but neither she nor her father can be sure of her mother's whereabouts. Jim continually supported Anne while they lived in Vietnam.

Anne recently came to the United States without the proper travel documents and was placed in removal proceedings.1 At the proceedings, she argued that she could not be deported because she was a United States citizen. This was the first time that Anne had ever stepped foot in the United States and she does not remember the last time she had contact with her mother. Nevertheless, she claimed that she acquired United States citizenship at birth because she was born to a United States 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) was born in Vietnam to Hung Thi Nguyen, a Vietnamese citizen and to Joseph Boulais, a United States citizen. His mother and father were never married. From the time he was an infant, Nguyen lived with his father and his step-mother. Eventually, Joseph returned to the United States, and when Nguyen was six years old he came to live with his father in America. Neither Nguyen nor his father have tried to contact Nguyen's mother since Nguyen arrived in the United States and they are unaware of her whereabouts, or if she is even alive. Joseph continually supported Nguyen, first in Vietnam, and then when he arrived in the United States.

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

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

The difference between the first hypothetical and the second hypothetical, which was based on Nguyen v. Immigration & Naturalization Service,4demonstrates the inherent unfairness encompassed in section 309 of the INA. In this note I will argue that in Nguyen v. Immigration & Naturalization Service5the Supreme Court failed to protect America's understanding of citizenship. The Supreme Court, in deciding Nguyen upheld section 309(a) of the INA,6stating that the statutory distinction was "consistent with the equal protection guarantees embedded in the Due Process Clause of the Fifth Amendment."7Rather than discussing whether the Supreme Court correctly applied the standards in regard to the equal protection guarantees found in the Due Process Clause of the Fifth Amendment,8I will assert that Nguyen was decided incorrectly based on our jurisprudential notions of citizenship.

In Part I, I will examine the history of citizenship in the United States; how it was originally acquired and how it has come to be understood. In Part II, I discuss two relevant cases, Miller v. Albright9and Nguyen v. Immigration & Naturalization Service10in which the Supreme Court upheld the constitutionality of section 309 of the INA and in doing so misunderstood the meaning of citizenship. The Court upheld this offensive statute based on faulty equal protection analysis rather than looking at what...

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