Lorelyn Penero Miller v. Warren Christopher, Secretary of State

96 F.3d 1467, 321 U.S. App. D.C. 19, 1996 U.S. App. LEXIS 26361, 1996 WL 570235

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 8, 1996
• Docket: 94-5160
• Status: Published

Opinions

Opinion for the court filed by Senior Circuit Judge BUCKLEY.

Separate opinion concurring in the judgment filed by Circuit Judge WALD.

BUCKLEY, Senior Circuit Judge:

Lorelyn Peñero Miller, a nonresident alien, appeals the dismissal of her complaint for lack of Article III standing and challenges the constitutionality, on equal protection grounds, of a statute governing the citizenship of an illegitimate child bom abroad of an American father and an alien mother. We hold that Ms. Miller had standing to bring this action; but in light of controlling Supreme Court precedent, we conclude that the challenged statute is constitutional.

I. BACKGROUND

Ms. Miller was born in Angeles City, Republic of the Philippines, on June 20, 1970. Her birth certificate states that Ms. Miller was illegitimate; and it identifies her mother as Luz Peñero, a Filipino national. It does not identify her father. Ms. Miller claims that she is the daughter of Charlie R. Miller, a U.S. citizen, who, at the time of her birth, was a member of the U.S. military stationed in the Philippines. Mr. Miller and Luz Peñe-ro have never married.

In February 1992, eight months after Ms. Miller’s 21st birthday, she applied to the U.S. State Department for registration as a United States citizen. In her complaint, Ms. Miller stated that she was “a ... resident of the Angeles City, Republic of the Philippines.” First Amended Complaint at 1. The record does not reveal whether she has ever been to the United States.

In 1992, the State Department denied Ms. Miller’s application for U.S. citizenship on the ground that she failed to meet the requirements of the provision of the Immigration and Naturalization Act of 1952 (“Act”), 8 U.S.C. § 1409(a), which applies to persons bom out of wedlock outside the United States of an American father and an alien mother. As amended in 1988, section 1409(a) provides that such a child will be deemed a U.S. citizen as of the date of birth if:

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

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

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

(4) while the person is under the age of 18 years—

(A) the person is legitimated under the law of the person’s residence or domicile,

(B) the father acknowledges paternity of the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

8 U.S.C. § 1409(a) (1994). Because she falls within a narrow statutory age bracket, Ms. Miller would be able to satisfy the requirement of section 1409(a)(4) on a showing that she was legitimated prior to the age of 21, rather than 18, as provided under the section before it was amended in 1986. See 8 U.S.C. § 1409 note (Effective Date of 1986 Amendment). The State Department found that Ms. Miller failed to meet the requirements of subsections (3) and (4) of section 1409(a). See Miller v. Christopher, 870 F.Supp. 1 (D.D.C.1994) (“Mem. Op.”) at 2.

On July 27, 1992, Mr. Miller obtained a Voluntary Paternity Decree from a Texas state court, establishing that he was Ms. Miller’s biological father. Ms. Miller submitted that document to the State Department and requested reconsideration of its denial of her application. Ms. Miller then sought judicial review of her claim in the United States District Court for the Eastern District of Texas. In that action, she named the Secretary of State (“Secretary”) as defendant. Ms. Miller’s complaint charged that the statutory prerequisites to her application for U.S. citizenship contained in 8 U.S.C. § 1409(a) violated the Constitution’s equal protection principles because of the statute’s distinctions between legitimate and illegitimate children and between men and women. Complaint ¶ XII(l). Ms. Miller sought a declaration that she “is a citizen of the United States and is entitled to all the rights and privileges of citizens of the United States including a right to possess a passport.” First Amended Complaint ¶ XVII(2).

The Secretary moved to dismiss the complaint or, in the alternative, to transfer venue. Thereupon, Ms. Miller amended the complaint, adding Mr. Miller, a resident of Texas, as co-plaintiff. On June 2, 1993, the district court in Texas dismissed Mr. Miller’s claims for lack of standing and ordered that the case be transferred to the United States District Court for the District of Columbia, where venue, based on the Secretary’s residence, was proper. Miller v. Christopher, C.A. No. 6: 93 CV 39 (E.D. Tex. June 2, 1993). Upon transfer, the Secretary renewed his motion to dismiss. By Memorandum Opinion and Order dated April 29,1994, the district court granted the Secretary’s motion to dismiss on the basis that Ms. Miller lacked standing. Mem. Op. at 5.

Ms. Miller presents three core issues on appeal. She argues, first, that the district court erred in finding that she lacked standing; second, that section 1409(a) violates the Equal Protection Clause of the Fourteenth Amendment; and, finally, that, even if the court upholds the constitutionality of section 1409(a), she meets its requirements because the Texas state court paternity decree retroactively legitimated her as of the date of her birth.

We address these arguments in turn.

II. Discussion

A. Standing

Article III of the United States Constitution requires plaintiffs invoking federal jurisdiction to establish three elements of standing:

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of— the injury has to be fairly trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, ellipses, and footnote omitted).

As the existence of the first two elements is conceded, the issue before us involves the third — whether Ms. Miller’s injury is redressable by a favorable decision. Although the district court found that Ms. Miller may have suffered an injury that was caused by the conduct of the Secretary, it concluded that Ms. Miller did not have standing to bring this action. Specifically, the court held that she had failed to “demonstrate any redressable injury” because, under INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), federal courts do not have the power to “grant citizenship.” Mem. Op. at 3 (citing Pangilinan, 486 U.S. at 884, 108 S.Ct. at 2216). The court reasoned that

[e]ven if this court should conclude that 8 U.S.C. § 1409(a) is unconstitutional, this court could not grant citizenship to plaintiff [because, under Pangilinan,] this could only be accomplished by legislative action. Only Congress has the power to confer citizenship to persons not constitutionally entitled to citizenship.

Id.

We respectfully disagree. In determining whether an injury is redressable, a court must ask “whether a plaintiffs injury would be likely to be redressed if the requested relief were granted.” In re Thornburgh, 869 F.2d 1503, 1511 (D.C.Cir.1989) (emphasis in original). Ms. Miller did not request the court to grant her citizenship; rather, she requested that the court declare section 1409(a) unconstitutional and merely make a finding under the general rule applicable to persons born outside of the United States, 8 U.S.C. § 1401(g), that she was a U.S. citizen from birth. Section 1401(g) provides, in pertinent part:

The following shall be nationals and citizens of the United States at birth:

•k v

(g) a person bom outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years....

8 U.S.C. § 1401(g) (1994).

We agree with Ms. Miller that, if the district court had held section 1409(a) to be unconstitutional, it could have found that she was a U.S. citizen pursuant to section 1401(g). Such a finding would not have violated Pangilinan’s proscription on the exercise of judicial equitable power to confer U.S. citizenship in the absence of legislative authority. Consequently, we hold that Ms. Miller has standing to pursue her claim.

B. Constitutionality of Section 1409

Ms. Miller challenges section 1409(a) on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment, as applied to the federal government through the Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). Specifically, Ms. Miller claims that the statute denies equal protection by illegally distinguishing between: (a) legitimate versus illegitimate children, (b) the illegitimate children of men versus those of women, and (c) the rights of the father of an illegitimate child versus those of its mother. Ms. Miller’s last claim is based upon Mr. Miller’s rights as a parent. Because he is not a party to this appeal, however, the claim is not properly before the court. See Ablang v. Reno, 52 F.3d 801, 804 n. 4 (9th Cir.1995) (holding that non-parties’ claims could not be asserted by proxy through parties).

Before addressing the substance of Ms. Miller’s claims, we must first determine the level of scrutiny we apply to the statute. The Supreme Court has recognized that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953). Acknowledging Congress’s plenary authority to prescribe rules for the admission and exclusion of aliens, the Supreme Court has found it

important to underscore the limited scope of judicial inquiry into immigration legislation. Th[e] Court has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.

Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (internal quotation marks and citations omitted). In Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the Court articulated a standard of review for First Amendment challenges in the immigration context. It held that the exercise of such power will be upheld if based on a “facially legitimate and bona fide reason.” Id. at 770, 92 S.Ct. at 2585. Five years later, when faced with an equal protection challenge to an immigration statute’s “ ‘double-barreled’ discrimination based on sex and illegitimacy,” Fiallo, 430 U.S. at 794, 97 S.Ct. at 1479, the Court found “no reason to review the broad Congressional policy choice at issue ... under a more exacting standard than was applied in Kleinr dienst. ...” Id. at 795, 97 S.Ct. at 1479. In determining whether a facially legitimate and bona fide reason supports a statute, we note that “Congress need not have stated its rationale for the distinction in the text or legislative history.” Ablang, 52 F.3d at 805.

We now determine whether there is a facially legitimate and bona fide reason for the statute at issue here. Under the Immigration and Nationality Act, the burdens imposed upon illegitimate children are greater than those imposed upon legitimate children; and the burdens imposed upon the illegitimate children of American men are greater than those imposed upon the illegitimate children of American women. Specifically, under section 1401(g), every legitimate child born outside the United States “of parents one of whom is an alien, and the other a citizen of the United States” who meets certain residency requirements, is a citizen of the United States at birth. 8 U.S.C. § 1401(g). The provisions of that section, however, do not apply to the illegitimate child born abroad of a United States citizen and an alien who fails to meet the requirements set forth in section 1409. Similarly, while an illegitimate child bom outside the United States of an American mother need only establish that the mother was a citizen at the time of its birth and has met a minimal residency requirement, see id. § 1409(c), the illegitimate child of an American father must establish two additional facts: it must prove both a biological relationship with the father, see id. § 1409(a)(1), and the existence, prior to the child’s eighteenth birthday, of a personal relationship between them as evidenced by (a) the father’s written agreement to provide it with financial support until it reaches that age and (b) the father’s voluntary acknowledgement of his paternity or a court adjudication confirming the fact, see id. §§ 1409(a)(3) & (4).

As a practical matter, there is no distinction between the rights under the Act of the legitimate and illegitimate children of American women bom outside the United States and its possessions. In each instance, only the fact of the mother’s U.S. citizenship at the time of the child’s birth need be established. Therefore, the issue before us is whether the additional requirements imposed by section 1409(a) on the illegitimate child of an American father represent an unconstitutional denial of equal protection based on (a) the status of the child and (b) the sex of the parent. We find the Supreme Court’s decision in Fiallo to be dispositive on both counts.

That case involved a constitutional challenge to another section of the Act, 8 U.S.C. § 1101(b), which, like section 1409, draws distinctions among alien children on the basis of legitimacy and the sex of their parents. In relevant part, the section reads as follows:

The term “child” means an unmarried person under twenty-one years of age who is—

(A) a legitimate child; [or]

•I*

(D) an illegitimate child ... on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person....

8 U.S.C. §§ 1101(b)(1)(A) & (D) (emphasis added). Section 1101(b) also includes a legitimated child within the definition but only if “such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of legitimation,” id. § 1101(b)(1)(C) — conditions that are comparable. to those imposed by sections 1409(a)(3) and (4). As in this case, the appellants in Fiallo claimed that the statute “denied them equal protection by discriminating against natural fathers and their illegitimate children ‘on the basis of the father’s marital status, the illegitimacy of the child, and the sex of the parent without either compelling or rational justification.’ ” 430 U.S. at 791, 97 S.Ct. at 1477 (citation omitted).

The Court observed that in enacting section 1101(b),

Congress was specifically concerned with the relationship between a child born out of wedlock and his or her natural mother, and the legislative history ... reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his or her natural father.

Id. at 797, 97 S.Ct. at 1480. The Court acknowledged that the provisions of the section “ma[de] it more difficult for illegitimate children and their natural fathers to be reunited in this country than ... for illegitimate children and their natural mothers.” Id. at 798, 97 S.Ct. at 1481. It pointed out, however, that while these were

admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens, ... the decision nonetheless remain[ed] one solely for the responsibility of the Congress and wholly outside the power of this Court to control. Congress obviously ha[d] determined that preferential status [was] not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most eases of close family ties as well as a concern with the serious problems of proof that usually lurk[ed] in paternity determinations. In any event, it [was] not the judicial role in cases of this sort to probe and test the justifications for the legislative decision.

Id. at 798-99, 97 S.Ct. at 1481-82 (internal quotation marks, citations, and footnotes omitted). The Court then held that the challenged provisions “are not unconstitutional by virtue of the exclusion of the relationship between an illegitimate child and his natural father from the preferences accorded by the Act” to others. Id. at 800, 97 S.Ct. at 1482.

While recent developments in DNA technology may have removed many of the difficulties that once plagued the proof of paternity, as required by section 1409(a)(1), in light of that holding and the Court’s reference to “the perceived absence of close family ties” between illegitimate children and their natural fathers as well as to the problems of proof in paternity determinations, we see no basis for concluding that section 1409(a) is unconstitutional. Rather, we conclude, as did the Ninth Circuit, that “a desire to promote early ties to this country and to those relatives who are citizens of this country is not a[n ir]rational basis for the requirements made by” sections 1409(a)(3) and (4). Ablang, 52 F.3d at 806. Furthermore, we find it entirely reasonable for Congress to require special evidence of such ties between an illegitimate child and its father. A mother is far less likely to ignore the child she has carried in her womb than is the natural father, who may not even be aware of its existence. As the Court has recognized, “mothers and fathers of illegitimate children are not similarly situated.” Parham v. Hughes, 441 U.S. 347, 355, 99 S.Ct. 1742, 1747, 60 L.Ed.2d 269 (1979). “The putative father often goes his way unconscious of the birth of the child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother.” Id. at 355 n. 7, 99 S.Ct. at 1748 n. 7 (internal quotation marks and citation omitted). This sex-based distinction seems especially warranted where, as here, the applicant for citizenship was fathered by a U.S. serviceman while serving a tour of duty overseas. Counsel for Ms. Miller conceded, during oral argument, that Ms. Miller and her father had not had an ongoing parental relationship while she was a minor, although the two appear to have developed one since then. But even if Ms. Miller had argued, as did the appellants in Fiallo, that the requirements of section 1409(a) were “based on an overbroad and outdated stereotype concerning the relationship of unwed fathers and their illegitimate children,” Fiallo, 430 U.S. at 799 n. 9, 97 S.Ct. at 1482 n. 9, the Supreme Court specifically noted that “this argument should be addressed to the Congress rather than the courts.” Id.

C. Application of Section 1409(a)

Ms. Miller contends that, even assuming the constitutionality of section 1409(a), the Texas state court’s paternity decree applies retroactively to her birth, and that she therefore satisfies the requirement of section 1409(a). We are unpersuaded. Ms. Miller obtained the paternity decree after she turned 21; the statute, however, requires legitimation or establishment of paternity “while the person is under the age of’ 18 or, as in her case, 21, depending on whether the previous or amended version of the statute applies. To allow Ms. Miller to gain the retroactive benefit of a state court judgment would undercut Congress’s clearly stated requirements and would have the effect of establishing citizenship in ways inconsistent with federal legislation. Because an applicant must satisfy each of the requirements of section 1409(a)(l)-(4), and Ms. Miller has failed to satisfy those of subsections (a)(3) and (4), the State Department properly denied her application for citizenship.

III. Conclusion

While the district court erred in holding that Ms. Miller lacked standing to bring her claim, we reject her constitutional challenges to section 1409(a) and find that she failed to meet its requirements. We therefore remand the case to the district court for further proceedings consistent with this opinion. So ordered.