A Mexican national has lost his bid to block his deportation from the US by challenging the constitutionality of a 1940 immigration law that treats men and women differently.
Lawyers for Ruben Flores-Villar had attacked a statute that makes it easier for an unwed mother to transmit US citizenship to her child born outside the US than for an unwed father in the same position.
On Monday, the US Supreme Court announced that it had deadlocked 4 to 4 in the Flores-Villar case. The split was a result of Justice Elena Kagan’s recusal from consideration in the case, leaving the court with only eight members.
As a result of the deadlock, the high court did not render an opinion. The action lets stand an earlier decision by a federal appeals court upholding Mr. Flores-Villar’s conviction on immigration charges.
The case stems from the saga of Ruben Flores-Villar who was born in Mexico in 1974 to an unmarried Mexican mother and a US-citizen father. At two months old, the child was brought to the US and raised by his father and grandmother. He grew up in San Diego County but never applied to become a US citizen.
In 1997, Flores-Villar was convicted of marijuana smuggling and sentenced to two years in prison. After serving his sentence he was deported to Mexico. In the years that followed, he returned to the US and was deported again at least six times. In his most recent case, his lawyer challenged the deportation order by arguing that Flores-Villar, as the child of a US citizen, was, himself, a US citizen who could not be deported.
Immigration officials disagreed. At the time of Flores-Villar’s birth, his father was 16 years old. Under the relevant immigration law, the unwed father of a child born outside the US to a non-citizen mother must have been present in the US for five years after age 14 to transmit citizenship to the newborn child.
US officials said it was impossible for Flores-Villar’s father to satisfy the statutory requirement since he was 16 at the time of the birth.
In contrast, had it been Flores-Villar’s mother who was the US citizen, the baby would have qualified immediately for American citizenship provided the mother had spent at least one continuous year in the US prior to the birth.
Flores-Villar’s lawyers attacked the gender-based standards in the 70-year-old immigration law as illegal discrimination. They charged that it violated the Fifth Amendment’s guarantee of equal protection of the laws.
A federal judge disagreed, and affirmed the deportation order. A three-judge panel of the Ninth US Circuit Court of Appeals upheld that decision.
Congress is entitled to draw gender distinctions when engaged in regulation of immigration matters if those distinctions serve important government interests, the appeals court said.
One interest is assuring that that a biological parent-child relationship exists. “Mothers and fathers are not similarly situated in this respect; the relation is verifiable from the birth itself in the case of the mother, while a father’s biological relationship to the child is not so easily established,” wrote Judge Pamela Rymer.
In defending the 1940 statute, government lawyers said Congress was concerned that children born abroad to unwed US citizen mothers were at a higher risk of being stateless because many countries confer citizenship based on bloodline rather than place of birth.
Faced with that concern, Congress had a reason to relax the residency requirement for unwed mothers but not unwed fathers, they said.
“Avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests,” Judge Rymer wrote. “The means chosen substantially further the objectives.”
She added: “Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”