Tuan Anh Nguyen v. INS,
533 U.S. 53 (2001)

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No.99-2071. Argued January 9, 200l-Decided June 11,2001

Petitioner Tuan Anh Nguyen was born out of wedlock in Vietnam to a Vietnamese citizen and copetitioner Joseph Boulais, a United States citizen. Nguyen became a lawful permanent United States resident at age six and was raised by Boulais. At age 22, Nguyen pleaded guilty in a Texas state court to two counts of sexual assault on a child. Subsequently, respondent Immigration and Naturalization Service initiated deportation proceedings against him based on his serious criminal offenses. The Immigration Judge ordered him deportable. Boulais obtained an order of parentage from a state court while Nguyen's appeal was pending before the Board of Immigration Appeals, but the Board dismissed the appeal, rejecting Nguyen's citizenship claim because he had not complied with 8 U. S. C. § 1409(a)'s requirements for one born out of wedlock and abroad to a citizen father and a noncitizen mother. On appeal, the Fifth Circuit rejected petitioners' claim that § 1409 violates equal protection by providing different citizenship rules for children born abroad and out of wedlock depending on whether the citizen parent is the mother or the father.

Held: Section 1409 is consistent with the equal protection guarantee embedded in the Fifth Amendment's Due Process Clause. Pp. 59-73.

(a) A child born abroad and out of wedlock acquires at birth the nationality status of a citizen mother who meets a specified residency requirement. § 1409(c). However, when the father is the citizen parent, inter alia, one of three affirmative steps must be taken before the child turns 18: legitimization, a declaration of paternity under oath by the father, or a court order of paternity. § 1409(a)(4). The failure to satisfy this section renders Nguyen ineligible for citizenship. Pp.59-60.

(b) A gender-based classification withstands equal protection scrutiny if it serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. United States v. Virginia, 518 U. S. 515, 533. Congress' decision to impose different requirements on unmarried fathers and unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the time



of birth and is justified by two important governmental interests. Pp. 60-71.

(1) The first such interest is the importance of assuring that a biological parent-child relationship exists. The mother's relation is verifiable from the birth itself and is documented by the birth certificate or hospital records and the witnesses to the birth. However, a father need not be present at the birth, and his presence is not incontrovertible proof of fatherhood. See Lehr v. Robertson, 463 U. S. 248, 260, n. 16. Because fathers and mothers are not similarly situated with regard to proof of biological parenthood, the imposition of different rules for each is neither surprising nor troublesome from a constitutional perspective. Section 1409(a)(4)'s provision of three options is designed to ensure acceptable documentation of paternity. Petitioners argue that § 1409(a)(1)'s requirement that a father provide clear and convincing evidence of parentage is sufficient to achieve the end of establishing paternity, given the sophistication of modern DNA tests. However, that section does not mandate DNA testing. Moreover, the Constitution does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity, and § 1409(a)(4) represents a reasonable legislative conclusion that the satisfaction of one of several alternatives will suffice to establish the father-child blood link required as a predicate to the child's acquisition of citizenship. Finally, even a facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will be on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. Pp. 62-64.

(2) The second governmental interest furthered by § 1409(a)(4) is the determination to ensure that the child and citizen parent have some demonstrated opportunity to develop a relationship that consists of real, everyday ties providing a connection between child and citizen parent and, in turn, the United States. Such an opportunity inheres in the event of birth in the case of a citizen mother and her child, but does not result as a matter of biological inevitability in the case of an unwed father. He may not know that a child was conceived, and a mother may be unsure of the father's identity. One concern in this context has always been with young men on duty with the Armed Forces in foreign countries. Today, the ease of travel and willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when contemplating the prospect of mandating, contrary to Congress' wishes, citizenship by male parentage subject to no condition other than the father's residence in this country. Equal protection principles do not require Congress to ignore this

Full Text of Opinion

Primary Holding

It is permissible to place greater burdens on foreign-born children of unwed U.S. citizen fathers in the citizenship process than on foreign-born children of unwed U.S. citizen mothers.


Nguyen was the child of a U.S. father and a Vietnamese mother, who were not married when he was born in Vietnam. He lived with his father in Texas as a lawful permanent resident from the age of six. When he was 22, Nguyen pleaded guilty to two counts of sexual assault and was sentenced to eight years in prison on each of them. On the basis of these convictions, the Immigration and Naturalization Service initiated deportation proceedings against Nguyen, who stated that he was a Vietnamese citizen. When the judge ordered him deported, Nguyen's father supplied DNA evidence and a court order to prove that he was Nguyen's biological father.

Although this information was presented on appeal, it was dismissed because Nguyen had not complied with the federal statute for establishing U.S. citizenship as the child of an unmarried U.S. citizen father. Children in this position were required to prove one of three things that children of unmarried U.S. citizen mothers were not required to prove. These were a declaration of paternity, a court order establishing paternity, or legitimization. Since Nguyen's father had not established any of these three steps before the deportation order, the appellate court ruled that his appeal should be denied.



  • Anthony M. Kennedy (Author)
  • William Hubbs Rehnquist
  • John Paul Stevens
  • Antonin Scalia
  • Clarence Thomas

Intermediate scrutiny is the appropriate standard of review for a gender-based classification challenged on equal protection grounds. This means that the government must show that it has an important interest to which its chosen means is substantially related. The government does have an important interest in requiring proof that the father is the child's biological parent and also in ensuring the development of the relationship between the father and the child. Motherhood is much easier to prove because the biological mother always will be present at the child's birth. There is a clear distinction between fathers and mothers in this area that justifies different treatment.


  • Sandra Day O'Connor (Author)
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

A more stringent analysis should be used when intermediate scrutiny is the standard of review. The substantial connection prong has not been satisfied, and establishing paternity is not an interest that the government even raised. Ensuring the development of a parent-child relationship is an ambiguous objective that does not meet the standard of an important interest.


  • Antonin Scalia (Author)
  • Clarence Thomas

Case Commentary

It is much easier to determine the parentage of a mother than of a father, realistically speaking, so there was a legitimate, easily ascertainable reason for the different treatment of the genders. As with other decisions regarding immigration, the Court was more deferential to the legislature's judgments than the appropriate standard of review (here, intermediate scrutiny) usually leads it to be.

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