Ablang v. Reno, 93-56129

• Decision Date: 14 April 1995
• Docket Number: No. 93-56129,93-56129
• Citation: 52 F.3d 801
• Parties: Luzvisaminda ABLANG, Plaintiff-Appellee, v. Janet RENO, * Attorney General, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 801

52 F.3d 801

Luzvisaminda ABLANG, Plaintiff-Appellee, v. Janet RENO, ^* Attorney General, et al Defendants-Appellants.

No. 93-56129.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 8, 1995.

Decided April 14, 1995.

John S. Koppel, U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

Charles M. Miller, The Miller Law Offices, Studio City, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: TROTT, FERNANDEZ, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

I

United States Attorney General Janet Reno and Secretary of State Warren Christopher appeal the district court's award of summary judgment to Luzvisaminda Ablang in her action challenging the constitutionality of section 205 of the Nationality Act of 1940, 54 Stat. 1137, and seeking a declaratory judgment that she is a United States citizen. We reverse the district court's decision and remand.

II

FACTS AND PROCEDURAL HISTORY

The facts of this case are undisputed. Luzvisaminda Ablang was born out of wedlock in the Philippines on June 8, 1946, to a Filipino mother and a United States citizen father stationed in the Philippines during World War II. ¹ Her father, Walter Simmerson, left the Philippines before she was born. Lacking resources, Ablang's mother gave her shortly after birth to another family, which raised but never legally adopted her. Ablang was unaware of her true parentage until her natural mother came to see her some time after her graduation from high school. Her mother informed her that her father was a United States citizen, whom she believed to be deceased. In 1981, Ablang nonetheless wrote to her father at an old address provided by her mother. He responded, and they met for the first time in 1987.

In 1990, Ablang applied for a Certificate of Citizenship from the INS, and in 1991 for a United States passport. She submitted affidavits from her father acknowledging his paternity, as well as the results of genetic testing showing her to be Simmerson's daughter by a 95.77% probability. Both of her applications were denied. The Government does not dispute that Ablang is Simmerson's daughter. It acknowledges that Simmerson "fits the parental requirement." It bases its denial of her request to be recognized as a United States citizen on her failure to have been legitimated or to have had her paternity adjudicated by the age of majority, as required by section 205 of the Nationality Act of 1940.

After her applications were denied, Ablang filed a complaint with the district court seeking a declaratory judgment of her United States citizenship. The district court found section 205 to be unconstitutional as a violation of the equal protection clause, and awarded summary judgment to Ablang, declaring her to be a United States citizen. The Government timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

III

DISCUSSION

A. Standard of Review

A grant of summary judgment is reviewed de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Review of a decision to grant or deny declaratory relief is de novo. Tashima v. Administrative Office of the United States Courts, 967 F.2d 1264, 1273 (9th Cir.1992). " 'Although the decision to grant or deny declaratory relief ... is a matter initially committed to the discretion of the district court, on appeal we exercise our own "sound discretion" to determine the propriety of the district court's grant or denial of declaratory relief.' " Dexter v. Kirschner, 984 F.2d 979, 982 (9th Cir.1993) (quoting Fireman's Fund Ins. Co. v. Ignacio, 860 F.2d 353, 354 (9th Cir.1988)).

B. Analysis

"The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth." Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir.1990). The statutes applicable here are sections 201(e) and 205 of the Nationality Act of 1940 ("the Act"). ² Section 201(e) confers citizenship on:

[a] person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who resided in the United States or one of its outlying possessions prior to the birth of such person.

Section 205 provides as to illegitimate children:

The provisions of section 201, [subsection] ... (e) ... hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court.

In the absence of such legitimation or adjudication, the child ... if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.

The Act thus requires that a child born abroad and out of wedlock to a United States citizen father and an alien mother establish paternity by the age of majority in order to be deemed a United States citizen. A child born abroad and out of wedlock to a United States citizen mother and alien father is deemed a United States citizen provided the mother has met the residency requirement; nothing further is required of the child.

In its order of April 28, 1993, the district court found section 205 to be violative of the Equal Protection Clause because it "takes away" the citizenship granted in section 201 on an unjustifiably discriminatory basis. In other words, Ablang argues, section 205 imposes a "condition subsequent" to retention of the United States citizenship previously granted her by section 201. We do not agree. Even if section 205 could be read as implying a condition subsequent, it is established that Congress may impose such conditions. Rogers v. Bellei, 401 U.S. 815, 831, 834, 91 S.Ct. 1060, 1069, 1070, 28 L.Ed.2d 499 (1971).

But we do not read section 205 as revoking a previous grant of citizenship. We agree with the Government that citizenship does not inhere under the Act unless and until paternity is established, provided this takes place by the age of majority. The question before us is whether the Act unlawfully discriminates between: 1) classes of children born abroad to an alien and a United States citizen parent, on the basis of legitimacy; or 2) classes of illegitimate children, born abroad to an alien and a United States citizen parent, on the basis of the United States citizen parent's gender.

In Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), the Supreme Court upheld the constitutionality of 8 U.S.C. Sec. 1101(b)(1)(D), a statute which excluded natural fathers and their illegitimate children from the special preference immigration status granted by the Immigration and Nationality Act to aliens who qualify as the children or parents of United States citizens or lawful permanent residents. The Court observed that judicial inquiry into immigration legislation is limited in deference to the "long recognized" power of the political branches of the Government to "expel or exclude aliens." Id. at 792, 97 S.Ct. at 1477; see also United States v. Wong Kim Ark, 169 U.S. 649, 702-03, 18 S.Ct. 456, 477-78, 42 L.Ed. 890 (1897) (holding that the legislative power to prescribe a uniform rule of naturalization reaches to the bestowal of United States citizenship upon foreigners and upon foreign-born children of United States citizens alike). While Fiallo requires the courts to limit the scope of review of immigration laws in deference to Congress, it does not preclude review. "The Court's position has always been that cases alleging constitutional infirmities in the immigration laws are subject to judicial review." Ventura-Escamilla v. INS, 647 F.2d 28, 31 (9th Cir.1981).

While " 'Congress regularly makes rules that would be unacceptable if applied to citizens,' " Fiallo, 430 U.S. at 792, 97 S.Ct. at 1478 (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976)), it must nevertheless have a "facially legitimate and bona fide reason" for enacting a discriminatory rule. Fiallo, 430 U.S. at 792-94, 97 S.Ct. at 1477-79. We have held, and here affirm, that the "facially legitimate and bona fide reason" test is equivalent to the rational basis test typically applied in equal protection cases. Wauchope v. United States Dept. of State, 985 F.2d 1407, 1414 n. 3 (9th Cir.1993).

Applying the facially legitimate and bona fide reason test, the Fiallo Court concluded that, "Congress obviously has determined that preferential status is not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most cases of close family ties as well as a concern with the serious problems of proof that usually lurk in paternity determinations," and held the statute to be "not unconstitutional." Id., 430 U.S. at 799, 97 S.Ct. at 1481. ³

In Wauchope, we held that section 1993 of the Revised Statutes of 1874, which awarded United States citizenship to the foreign-born offspring of United States citizen fathers, but not to the foreign-born offspring of United States citizen mothers, was unconstitutional. 985 F.2d at 1416. Whereas Fiallo concerned the right of aliens to equal protection under the special preference immigration laws, Wauchope concerned the right of United States citizen mothers to transmit citizenship to their children born abroad according to the same standards set for United States citizen fathers. ⁴ The Government's explanation for the disparity in treatment between men and women involved the United States' efforts to discourage dual citizenship. The argument was that foreign countries were less apt to confer citizenship on the children of United States citizen fathers than those of United States citizen mothers, so allowing mothers to pass on their United States citizenship was more likely...