United States District Court, District of New Jersey
November 19, 1991
BARBARA LEBRUN, PLAINTIFF,
RICHARD THORNBURGH, ESQ., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sarokin, District Judge.
Plaintiff, born in France, the daughter of an American World
War II soldier, has been denied United States citizenship.
Plaintiff's parents were unmarried, and her father returned to
the United States after the war. Plaintiff's mother, a French
citizen, remained in France with her daughter.
In order for plaintiff to have been eligible for
citizenship, it was necessary that she be recognized and
acknowledged by her father before she became 21. Plaintiff was
not "legitimated" by her father until 1981, the year that he
died, at which time she was then 35 years old. In addition to
the legitimacy requirement, under the then-applicable law,
plaintiff could not become a citizen unless she had already
resided in the United States for five years between the ages
of 13 and 21 or five years between
the ages of 14 and 28. Not unsurprisingly, plaintiff did not
meet these requirements, because her father had not
acknowledged his parenthood. The requirements no longer exist,
but nonetheless they have been applied to deny plaintiff's
application for citizenship. Thus, in effect, plaintiff's
father, by his delay in acknowledging his parenthood of
plaintiff, has denied her the opportunity for citizenship in
this country, and the Immigration and Naturalization Service
("INS") has condoned his conduct by denying plaintiff's
The court concludes that the applicable law discriminates
against "illegitimate" children, and thereby violates the
Equal Protection Clause of the United States Constitution. The
law as it then existed and as applied in this matter served to
make the citizenship of children born out of wedlock to
American fathers, particularly those serving in the armed
forces, subject to the personal vagaries and consciences of
their fathers. Those who chose to act with honor could confer
such citizenship, and those who chose not to, could deny
citizenship to their offspring. Even the dilatory father, as
in this case, could defeat his child's claim to citizenship
merely by delaying the recognition of his responsibility,
until it was too late to satisfy the residency requirements.
Those who have no choice in the marital state of their
parents should not be so penalized or stigmatized, and their
rights to citizenship should not be dependent on the moral
fortitude (or lack thereof) of one of their parents. The
unfairness is exacerbated by placing such power solely in the
hands of the male parent. The law was thus discriminatory in
its impact upon children born out of wedlock and sexist in
making citizenship dependent upon the acquiescence of the male
Before the court is defendants' motion for summary judgment.
Plaintiff was born on August 3, 1945, in Paris, France. Her
natural parents, who were not legally married at the time,
were Renee Foucher, a citizen and national of France, and
Frank Pasek, Jr., a citizen and national of the United States.
Amended Complaint, ¶¶ 5-7; admitted in Answer. According to the
Department of State Passport Agency, records indicate that
plaintiff's father acknowledged paternity in correspondence to
plaintiff's mother dated November 15, 1945. See Amended
Complaint, Exh. D1.*fn1 It was not until April 10, 1981, that
plaintiff's natural father filed an acknowledgment of his
paternity of plaintiff in France, thereby "legitimating"
plaintiff in accordance with the laws of his domicile, New
Jersey. Amended Complaint, ¶ 9. Four months later, Frank Pasek,
Jr., died on August 20, 1981.
In November, 1985, plaintiff filed for a Certificate of
Citizenship. Plaintiff's application was denied by the INS,
District of New York, on November 20, 1986. Amended Complaint,
Exh. B. On December 3, 1986, plaintiff appealed the denial to
the Regional Commissioner; on July 29, 1987, Thomas W.
Simmons, Chief of the INS Administrative Appeals Unit ("AAU"),
denied the appeal. Id., Exh. C. Plaintiff had also applied for
a passport, in 1986. That application was denied by the
Regional Director for the U.S. Passport Agency on March 31,
1987. Id., Exh. D.*fn2
An exclusion proceeding which was begun earlier was
adjourned several times pending plaintiff's application for a
Certificate of Citizenship. Administrative Law Judge ("ALJ")
Elstein, on March 7, 1989, terminated the exclusion
proceedings against plaintiff, and ordered that she be
admitted to the United States as a temporary visitor for
business or pleasure, until June 30, 1989. See Def. Reply
Brief, Exh. A, at 5. On March 21, 1989, plaintiff appealed to
the Board of Immigration Appeals ("BIA"). The BIA denied
plaintiff's application on July 18, 1990.
On August 13, 1990, plaintiff filed the instant action. In
the First Count of the Amended Complaint, plaintiff asks that
she be admitted to citizenship, that Section 301 of the
Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. § 1401,
not be applied to her, and/or that § 301 be declared
unconstitutional. Id. at Exh. E. That section requires a
citizen born abroad to reside in the United States for a
certain period of time in order to retain citizenship rights.
Plaintiff challenges these retention requirements as violative
of her Equal Protection and Due Process rights.
Plaintiff raises an additional challenge to the denial of
her citizenship rights in the Second Count of the Amended
Complaint. Plaintiff alleges that when she was 19 years old
went to the U.S. Embassy in Paris, France, to
find out what she had to do to come to the United
She was told by an agent employee at the U.S.
Embassy that she had nothing to worry about; that
the United States takes care of its "war babies."
She was told that she was a citizen and that she
would have no problem going to the United States
when she was ready.
Relying on this information the plaintiff never
sought to enter the United States within the then
retention period. Had she been told accurately,
it is urged here that she would today be a full
fledged United States Citizen.
Amended Complaint, Second Count, ¶¶ 2-4.
Defendants now move for summary judgment, asking this court
to dismiss the complaint.
In plaintiff's applications for a Certificate of Citizenship
and a passport, her claim has been interpreted under the
following provisions of the relevant statutes.
The residency requirements for the retention of citizenship
for a foreign born citizen that was initially applicable to
plaintiff was contained in the Nationality Act of 1940.
Section 201(i), codified at 8 U.S.C. § 601, was enacted July
31, 1946. Sec. 201. The following shall be nationals and
citizens at birth:
(i) A person born outside the United States and
its outlying possessions of parents one of whom
is a citizen of the United States who has served
or shall serve honorably in the armed forces
after December 7, 1941, and before the date of
termination of hostilities in the present war as
proclaimed by the President or determined by the
joint resolution by the Congress and who, prior
to the birth of such person, has had ten years
residence in the United States or one of its
outlying possessions, at least five of which were
after attaining the age of twelve years, the
other being an alien: Provided, that in order to
retain such citizenship, the child must reside in
the United States or its outlying possessions for a
period or periods totaling five years between the
ages of thirteen and twenty-one years: Provided
further, that, if the child has not taken up
residence in the United States or its outlying
possessions by the time he reaches the age of
sixteen years, or if he resides abroad for such a
time that it becomes impossible for him to complete
the five years' residence in the United States or
its outlying possessions before reaching the age of
twenty-one years his American citizenship shall
Section 201(g) of the Nationality Act does not apply to
plaintiff, as by its own terms it "shall not apply to a child
born abroad whose American parent is at the time of the
child's birth residing abroad solely or principally in the
employment of the Government of the United States," as
plaintiff's father was. Furthermore, the requirement in
Section 205 of legitimation by age 21 is not applicable to
Section 201(i). See Y.T. v. Bell, 478 F. Supp. 828, 831 (W.D.Pa.
The Nationality Act was repealed by the Immigration and
Nationality Act of 1952, and section 301(b), codified at
8 U.S.C. § 1401(b), changed the applicable retention requirement
to five years of residence in the United States or its
the ages of 14 and 28. In 1972, the law was again modified to
require two years physical presence in the United States or
its territories between the ages of 14 and 28. P.L. 92-584
(October 27, 1972). On October 10, 1978, Congress repealed the
retention requirements entirely for any foreign born citizens
who had not yet reached their 28th birthday. P.L. 95-432
(October 10, 1978).
Section 309 of the Immigration and Nationality Act, codified
at 8 U.S.C. § 1409, provided that the relevant subsections of
Section 301 apply to a person born out of wedlock if the person
is "legitimated" under the age of 21 years, under the law of
that person's residence or domicile.
The State Department and Department of Justice, in
commenting upon the proposed repeal of § 301, noted that the
retention requirements "should be repealed retroactively to May
24, 1934." Letter of Patricia M. Wald, Ass't. A.G., to Peter
Rodino, Chair of the House Comm. on the Judiciary (Dec. 12,
1977), Plt.Exh. D1. Unfortunately for plaintiff and others in
her situation, the repeal was only enacted prospectively.
Plaintiff's various applications for a Certificate of
Citizenship and a passport were each decided on different
grounds, in some cases applying different sections of the Act.
The INS applied § 309 of the Act; the Passport Agency applied §
201; and the BIA primarily discussed, and rejected, plaintiff's
estoppel argument. The ALJ's ruling relied upon the earlier
decisions in plaintiff's case.
The INS, in its July 29, 1987 decision by the Chief of the
Administrative Appeals Unit ("AAU"), denied plaintiff's appeal
on the grounds that she did not meet the requirements set
forth in § 309 of the Act. Under that section, an
"illegitimate" child born on or after January 13, 1941, and
prior to December 24, 1952, must have been "legitimated" before
age 21 under the laws of the father's domicile; the father must
have had the required residence in the United States at the
time of the child's birth; and the child must have complied
with the residence requirements for retention of citizenship,
which mandate physical presence in the United States for
periods totaling five years between the ages of 13 and 21 (§
201) or two years between the ages of 14 and 28 (§ 201 as
amended by § 301). While it is unchallenged that plaintiff's
father met the required residence, the INS-AAU found that
plaintiff had not been properly "legitimated" under the laws of
New Jersey. The AAU further found that because plaintiff first
entered the United States in July 1980, when she was almost 35
years old, she could not have met the retention requirements.
The Department of State Passport Agency denied plaintiff's
application for a passport based on a different section of the
Act, § 201(i). That section provides that a person is a citizen
at birth if born outside of the United States to a parents one
of whom serves in the United States armed forces after December
7, 1941, and the other of whom is an alien. In order to retain
such citizenship, under the statute, the child must reside in
the United States for five years between the ages of 13 and 21
The Agency found, following Y.T. v. Bell, 478 F. Supp. 828,
that the requirement articulated in § 205, that an applicant
must have been legitimated by age 21, does not apply as an
additional requirement under § 201(i). However, the Passport
Agency found that plaintiff had failed to meet the retention
requirements of § 201(i). The Agency further noted that
plaintiff failed to meet the requirements of § 201 of the Act
as amended by § 301(b) of the Immigration and Nationality Act
of 1952. Under the amended Act, to retain citizenship rights a
person must be physically present in the United States for a
period of five years between the ages of 14 and 28.
In its July 18, 1990 denial of plaintiff's application, the
BIA dismissed plaintiff's estoppel argument, stating that:
while the United States Supreme Court has not
resolved the issue of whether there may be any
circumstances in which the government may be
estopped from denying citizenship because of the
of its officials, it has made clear that
consideration of this issue will not lie absent a
showing of `affirmative misconduct.'
Amended Complaint, E1 (citations omitted). The court found
that plaintiff's allegations, if true, did not establish
affirmative misconduct. The court noted that even if plaintiff
had received misinformation from the Embassy, plaintiff did
not show detrimental reliance, since she testified that she
never had the funds to travel to this country between 1964 and
1974. Amended Complaint, E3, citing Tr. at 56. The decision by
the Board also stated that "[n]either the immigration judge
nor this Board has any jurisdiction to consider challenges to
the constitutionality of the laws that we administer." Amended
Complaint, E1 (citations omitted).
In order to prevail on a motion for summary judgment, the
moving party must show that there are no genuine issues of
material fact and that, viewing the facts in the light most
favorable to the non-movant, the movant will prevail as a
matter of law. Fed.R.Civ.P. 56. See Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wisniewski
v. Johns-Manville Corp., 812 F.2d 81, 84 (3d Cir. 1987).
The court will address the parties' arguments in turn.
Dismissal as to Secretary Baker
Plaintiff's Amended Complaint seeks a declaration of
citizenship and a declaratory judgment holding the retention
requirements in the Act unconstitutional. Plaintiff does not
seek redress from the Secretary of State regarding the denial
of her application for a passport. Accordingly, the court will
grant defendants' motion to dismiss the Amended Complaint as
to the Secretary of State for failure to state a claim.
Defendants further argue that plaintiff's action should be
dismissed as to the Secretary of State for lack of subject
matter jurisdiction. Because of its dismissal as to the
Secretary for failure to state a claim, the court need not
reach this argument. The court notes that defendants concede
that subject matter jurisdiction exists as to defendant the
Attorney General, pursuant to the Administrative Procedure
Act, 5 U.S.C. § 704, which gives this court jurisdiction to
hear appeals from the BIA. See Def. Brief at 22 n. 10, 23.
Defendants argue that under 8 U.S.C. § 1503(a), plaintiff
lacks standing to bring this suit. That section of the statute
provides that a person within the United States who claims the
right of citizenship and is denied, may institute an action
against the head of the department or agency denying her that
right, except that no such action may be instituted where the
issue of the person's status as a national of the United States
(1) arose by reason of, or in connection with an exclusion
proceeding, or (2) is an issue in such a proceeding. Defendants
argue that because plaintiff's application for citizenship in
1985 grew out of the exclusion proceedings initiated against
her in 1985, she cannot maintain a suit under this action.*fn3
The court has declined, on the instant motion, to consider
plaintiff's application solely as one for citizenship; rather,
the court construes the instant action as a challenge to the
constitutionality of the Immigration and Nationality Act, as
applied to plaintiff. Defendant concedes that plaintiff has
standing to bring the constitutional challenge. See Reply Brief
at 5 n. 5.
The Supreme Court has allowed constitutional challenges to
be maintained by illegal aliens, see, e.g., Plyler v. Doe,
457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); McNary,
Commissioner of Immigration and Naturalization v. Haitian
Refugee Center, Inc., ___ U.S. ___, 111 S.Ct. 888, 112 L.Ed.2d
1005 (1991); so too constitutional challenges brought by
persons who may in fact be citizens, and the denial of whose
citizenship rights is in question, should be permitted to go
forward. The Fourteenth Amendment provides that "[n]o State
shall . . . deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." (Emphasis
added). The Supreme Court has held that
Whatever his status under the immigration laws,
an alien is surely a `person' in any ordinary
sense of that term. Aliens, even aliens whose
presence in this country is unlawful, have long
been recognized as `persons' guaranteed due
process of law by the Fifth and Fourteenth
Plyler, 457 U.S. at 210, 102 S.Ct. at 2391 (citations omitted).
Thus plaintiff, who is not clearly an alien or a non-citizen,
should be guaranteed the equal protection of the laws. See Y.T.
v. Bell, 478 F. Supp. 828, 832 (W.D.Pa. 1979) (distinguishing
level of scrutiny for constitutional challenges to statutes by
plaintiffs who are "clearly non-citizens" and plaintiffs who
have a strong claim to citizenship).
Moreover, plaintiff has met the conditions for standing, as
articulated in Association of Data Processing Service
Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30,
25 L.Ed.2d 184 (1970), to challenge the statute under which she
has been denied citizenship. She has demonstrated both injury
in fact and that she is within the zone of interests to be
protected or regulated by the statute.
Plaintiff argues that the government is estopped from
denying her citizenship rights because in failing to meet the
retention requirements she was relying on the misinformation
given her in the United States Embassy when she was age
nineteen. Plaintiff's estoppel argument must fail. While
citizenship is not automatically lost where a person was
misled by the action of a government official whose duty it
was to inform that person, see Matter of S___, 8 I. & N. Dec.
226 (BIA 1958), plaintiff relies for her estoppel argument on a
conversation with an unidentified employee of the American
Embassy in Paris. While plaintiff was allegedly told that she
was an American citizen and that she would not encounter any
problems entering the United States at a later date, the record
does not show that the person with whom plaintiff spoke was a
Nor can plaintiff base her estoppel argument on a theory of
government "affirmative misconduct." Whether "affirmative
misconduct" by the government would estop it from enforcing
the laws is unsettled in the caselaw. See Heckler v. Community
Health Services, Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224,
81 L.Ed.2d 42 (1984) ("We have left this issue open in the
past, and do so again today."); see also United States
Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94
S.Ct. 19, 38 L.Ed.2d 7 (1973) (government's failure to fully
publicize rights accorded those seeking naturalization or its
failure to make available authorized naturalization
representatives did not constitute "affirmative misconduct").
Plaintiff's allegations as to a conversation with an
unidentified individual in the United States Embassy about
general citizenship rights is not sufficient to establish
"affirmative misconduct" on the part of the government.
Finally, plaintiff cannot claim to fall under the exception
to the strict application of the retention requirements by
arguing that she was unaware of any claim for citizenship.
Indeed, plaintiff's assertion that she went to the United
States Embassy to inquire about her citizenship rights
precludes such an argument. See Rucker v. Saxbe, 552 F.2d 998
(1977), cert. denied, 434 U.S. 919, 98 S.Ct. 392, 54 L.Ed.2d
Plaintiff has challenged the constitutionality of the
relevant statutes under the Fourteenth Amendment.
The Supreme Court has recognized that any person within the
jurisdiction of the United States, including illegal aliens,
claim the benefit of the Fourteenth Amendment's guarantee of
equal protection. Plyler, 457 U.S. at 215, 102 S.Ct. at
2293-94. Under well established doctrine, distinctions in the
law that disadvantage "illegitimate" children must be examined
by the courts with a close scrutiny. Tribe, Constitutional Law,
In Trimble v. Gordon, the Court established a standard for
examining statutes that distinguish between "legitimates" and
"illegitimates," under which the question is whether the
statute "is carefully tuned to alternative considerations."
430 U.S. 762, 772, 97 S.Ct. 1459, 1466, 52 L.Ed.2d 31 (1977)
(citations omitted). The Court took into account "`the lurking
problems with respect to proof of paternity,'" but noted that
while those problems "`are not to be lightly brushed aside, . .
. neither can they be made into an impenetrable barrier that
works to shield otherwise invidious discrimination.'" Id., 430
U.S. at 771, 97 S.Ct. at 1466 (citing Gomez v. Perez,
409 U.S. 535, 538, 93 S.Ct. 872, 874-75, 35 L.Ed.2d 56 (1973)). While
this standard of review is somewhat "narrow," see Fiallo v.
Bell, 430 U.S. 787, 796, 97 S.Ct. 1473, 1480, 52 L.Ed.2d 50
(1977), (citing Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct.
1883, 1892-93, 48 L.Ed.2d 478 (1976)), courts must ensure that
the rights guaranteed by the Fifth Amendment have not been
violated. Plyler, 457 U.S. at 210, 102 S.Ct. at 2391; Fiallo,
430 U.S. at 809-10, 97 S.Ct. at 1486-87 (Marshall, J.,
dissenting), and authorities cited therein. Under the standard
in Rogers v. Bellei, 401 U.S. 815, 831, 91 S.Ct. 1060, 1069, 28
L.Ed.2d 499 (1971) (discussed infra), this court must ensure
that the statute is not unreasonable, arbitrary or
The court concludes that § 309 is not "carefully tuned to
alternative considerations." Even under a minimum rationality
standard, the distinction made in section 309 of the statute
must fail. Moreover, under the standard articulated in Rogers
v. Bellei, the distinction is not only unreasonable and
arbitrary, but it is also, under the Equal Protection Clause,
The statute conditions the retention of citizenship upon an
official act by the father of "illegitimate" children. Courts
have long recognized, however, that the rights of one cannot
be made contingent upon the act of another. An individual
keeps his citizenship "unless he voluntarily relinquishes it."
Afroyim v. Rusk, 387 U.S. 253, 262, 87 S.Ct. 1660, 1665, 18
L.Ed.2d 757 (1967). Not only can plaintiff not be said to have
voluntarily relinquished her citizenship, but she has not even
been given the chance of retaining it or relinquishing it; her
citizenship rights are controlled by the acts of another
In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, the Supreme
Court invalidated a Texas statute which withheld from local
school districts any state funds for the education of children
who were not legally admitted into the United States, and which
authorized local school districts to deny enrollment to such
children. The Court held that the statute violated the Equal
Protection Clause of the Fourteenth Amendment, stating that
children, who were the plaintiffs in the case before it, "`can
affect neither their parents' conduct nor their own status.'"
Id. at 220, 102 S.Ct. at 245, citing Trimble v. Gordon,
430 U.S. 762, 770, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31 (1977). The
Court held that to punish children for the conduct of their
parents "does not comport with fundamental conceptions of
justice." Id. The Court went on to cite its ruling in Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400,
1406-07, 31 L.Ed.2d 768 (1972):
"[V]isiting condemnation on the head of an infant
is illogical and unjust. Moreover, imposing
disabilities on the . . . child is contrary to
the basic concept of our system that legal
burdens should bear some relationship to
individual responsibility or wrongdoing.
Obviously, no child is responsible for his birth
penalizing the . . . child is an ineffectual
— as well as unjust — way of deterring the
457 U.S. at 220, 102 S.Ct. at 245. See also Levy v. Louisiana,
391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).
The government has offered neither a compelling state
interest for maintenance of the statute, nor even a minimally
rational one. Administrative costs cannot be offered by the
government as justification, nor a fear of involvement with
foreign laws and records. Fiallo, 430 U.S. at 813-814, 97 S.Ct.
at 1489 (Marshall, J., dissenting). These justifications, even
if they had been offered by the government, are insufficient to
justify the statute.
Indeed, there can be no compelling or rational government
interest for applying the statute in the instant case. Where
it is undisputed that one parent of a foreign born child is a
United States citizen, there is no reason to require that the
citizen parent file a formal acknowledgment of the child
before she reaches majority in order for the child to be
considered a citizen. In the case at bar, plaintiff's father
acknowledged in correspondence that he was plaintiff's father.
Because he nevertheless failed to file a formal
acknowledgment, thus "legitimating" her, before she reached
the age of 21, under the Act plaintiff cannot be considered a
citizen. If she is his daughter — and in the instant case
there is no dispute that she is — why should her citizenship
rights depend upon his saying so? It is wrong for a father to
have the unilateral ability to confer or deny citizenship to
The second requirement of the Act that plaintiff has also
failed to meet is the residence retention requirement. The
constitutionality of this requirement must be analyzed in
light of the court's earlier discussion as to the
"legitimation" requirement. As applied to an "illegitimate"
child, the residence retention requirements constitute a
denial of equal protection to "illegitimate" children, and
therefore must likewise be invalidated.
There is no compelling, or even rational justification for
the residence retention requirement. Indeed, in the
Congressional debate surrounding the repeal of § 301(b) in
1978, Members of Congress indicated that the purpose of the
Act, of ensuring that future citizens have a strong tie to this
country and preventing a long line of foreign born citizens who
have never been in the United States, is fulfilled by the
residence requirements placed upon the citizen parent. As one
Member of Congress noted during the debate on the repeal of §
a U.S. citizen may not transmit citizenship to
his children born abroad unless the parent has
previously resided in the United States [for the
requisite period of time]. H.R. 13349 does not
change these transmission requirements.
Sept. 19, 1978 Congressional Record-House at 30130, Plt.Exh.
B1. The Members of Congress further asserted that the
residence retention requirements placed on the children
creates bureaucratic havoc for the agencies, hardships on
families of foreign born citizens, and is not necessary to
fulfill the purposes of the Act. See id. ("the [Judiciary
Committee does not believe that this residence requirement is
necessary for the proper administration of our naturalization
laws. . . . These provisions no longer have any significant
operative effect."). Members of the House of Representatives
further noted that the Departments of State and Justice had
reported that the section had been difficult to administer, and
that its application had resulted in hardships in some cases.
Id. at 30131. The Members urged repeal of the Section in order
to "correct an inequity which has developed in our citizenship
law." Id. at 30130.
As applied to "illegitimate" children, the requirement is
even more unjustifiable. As a factual matter, it is unlikely
that a child not recognized by her citizen father would or
could travel to this country in order to retain her
citizenship rights. Moreover, without the emotional and
perhaps financial support of a parent in this country, it is
unlikely that a foreign born child would manage to arrive and
thrive in the United States at the young age and for
the significant period of time required by the Act.
Furthermore, it would be very difficult for that child to
enter this country in order to fulfill the retention
requirements: Without a citizen-parent's formal acknowledgment
and backing, how would she be able to attain a visa? While
some of the cases before the courts under § 309 have involved
children who arrived in this country on a student visa, a
statute cannot make the retention of citizenship rights
contingent upon the possibility that a foreign born citizen
will obtain a student visa from the INS for a sufficient number
of years, consecutively, during the requisite ages under the
Act. In other words, while the Act requires a foreign born
citizen to reside in this country in order to retain that
citizenship, there is little chance that an "illegitimate"
foreign born citizen could meet those requirements.
In Rogers v. Bellei, 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d
499, the Supreme Court emphasized that Congress' discretion in
enacting laws governing the citizenship rights of persons born
abroad are very broad. The Court upheld the power of Congress
to confer conditional citizenship under § 309. The Court
concluded that Fourteenth Amendment rights of citizenship did
not extend to persons not literally naturalized in the United
States, and thus upheld the congressional condition as "not
unreasonable, arbitrary, or unlawful." Id. at 831, 91 S.Ct. at
However, the instant case is distinguishable. The issue
presented by the instant case is a challenge to the
constitutionality of the provisions regarding "illegitimates,"
rather than a challenge to the constitutionality of the
conditionality of Congress' grant of citizenship to foreign
born persons. Y.T. v. Bell, 478 F. Supp. 828, 832 (W.D.Pa.
1979).*fn5 In Bellei, the petitioner challenged § 309 under
the Fifth, Eighth and Ninth Amendments to the United States
Constitution; in the instant case, the challenge is under the
Equal Protection Clause of the Fourteenth Amendment. The
instant case presents a situation that is "unreasonable" and
"arbitrary," as well as "unlawful," under the Equal Protection
Clause, in contrast to the Court's holding in Bellei.
The discrimination in § 309 between persons on the basis of
"legitimacy" is an archaic reminder of past discriminatory
treatment of individuals in society, both in terms of the
stigma of the label "illegitimate" with which it branded the
children of unwed parents, and in terms of the sex
discrimination that was reflected in the law that a man could
"legitimate" a child, whereas a woman could not. In addition to
being inhumane and unfair in this way, a distinction on the
basis of "legitimacy" is also an impractical distinction in
today's society, where unwed mothers abound, and single
parenthood has become a norm. As such, not only is the explicit
"legitimate/illegitimate" distinction in the Act unreasonable
and unlawful, but also the residence retention requirement in §
301 of the Act is unlawful as applied to "illegitimates,"
because it promotes the efficacy of the
Accordingly, the court concludes that the distinction in the
Act between "legitimate" and "illegitimate" children is an
unconstitutional violation of the Equal Protection Clause. The
court further holds that the residence retention requirements
in the Act are an unconstitutional violation of the Equal
Protection Clause as applied to "illegitimates," because those
requirements ultimately sanction and perpetuate a
discrimination in the law against "illegitimate" children
which the court has found unconstitutional.*fn6
The court concludes that, whether plaintiff's citizenship
application is analyzed under § 201, § 301, or § 309, both
statutes are unconstitutional as applied to "illegitimate"
children. Section 309 is unconstitutional because of its
requirement that a foreign born child of a United States
citizen be formally "legitimated" by the age of 21, and § 201
and § 301 are unconstitutional because the retention
requirements are essentially impossible for an "illegitimate"
to meet. Accordingly, plaintiff's case is remanded to the INS
for proceedings consistent with this opinion.