Aguayo v. Christopher, 92 C 7535.

• Decision Date: 26 September 1994
• Docket Number: No. 92 C 7535.,92 C 7535.
• Citation: 865 F. Supp. 479
• Parties: Aurora AGUAYO, Plaintiff, v. Warren CHRISTOPHER, Secretary of State, Defendant.
• Court: U.S. District Court — Northern District of Illinois

865 F. Supp. 479

Aurora AGUAYO, Plaintiff, v. Warren CHRISTOPHER, Secretary of State, Defendant.

No. 92 C 7535.

United States District Court, N.D. Illinois, Eastern Division.

September 26, 1994.

COPYRIGHT MATERIAL OMITTED

Cheryl L. Lenz-Calvo, Kempster & Associates, David Rubman, Law Office of David Rubman, Chicago, IL, for plaintiff.

James G. Hoofnagle, U.S. Attorney's Office, Chicago, IL, for defendant.

MEMORANDUM OPINION

GRADY, District Judge.

Both parties have moved for summary judgment. For the reasons stated in this opinion, the court grants summary judgment in favor of plaintiff and denies the defendant's motion. The court will issue a declaratory judgment stating the plaintiff Aurora Aguayo is a citizen of the United States.

FACTUAL AND LEGAL BACKGROUND

Plaintiff Aurora Aguayo was born October 4, 1926, in Mexico. Her mother, Hilaria Perez, had been born in the United States in 1909. Plaintiff's father was a native and citizen of Mexico, where he died in 1930. Not long after World War II, plaintiff's mother came to live in the United States, although plaintiff did not follow until 1962, at the age of 35. Plaintiff has lived in this country ever since. In 1992, she applied for a U.S. passport and was denied on the ground that she was precluded from derivatively acquiring citizenship from her mother under § 1993 of the Revised Statutes of 1874. Plaintiff then filed this lawsuit against the defendant ("the Government") challenging the constitutionality of § 1993 and seeking to have herself declared a United States citizen. Section 1993 provided:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

Revised Statutes of 1874, § 1993. The law was enacted in response to scholarly concerns that its predecessor statute granted citizenship to only the foreign-born children of persons who were U.S. citizens on or before April 14, 1802, and not to foreigners whose parents had become citizens after that date. See Montana v. Kennedy, 366 U.S. 308, 311, 81 S.Ct. 1336, 1338, 6 L.Ed.2d 313 (1961). Section 1993 covered children "heretofore" or "hereafter" born abroad, but only those born of citizen fathers. Id. The statute did not grant citizenship to foreign-born persons who had a citizen mother but an alien father. Id. Congress amended the statute in 1934 to include this class of children of citizen mothers, but the amendment had only prospective effect. Id. at 312, 81 S.Ct. at 1339. As a result, persons such as Aguayo, who was born abroad of a citizen mother and alien father before 1934, remain under § 1993 and are not entitled to acquire U.S. citizenship derivatively from their mothers, at least as a matter of statutory construction. Id. The Montana Court was not confronted with a constitutional challenge to the facial terms of § 1993. In fact, neither the parties nor the court has encountered any instance in which the United States Supreme Court has had occasion to evaluate the question of whether § 1993 unconstitutionally discriminates against citizen mothers and their offspring.

Federal appellate courts have twice passed on this question. In Villanueva-Jurado v. INS, 482 F.2d 886 (5th Cir.1973), the Fifth Circuit upheld the statute without extensive discussion or analysis, noting the "free hand" of Congress in determining the citizenship of foreign-born persons. Id. at 887 (citing Hein v. INS, 456 F.2d 1239, 1240 (5th Cir.1972)). The Villanueva-Jurado court also cited prior Supreme Court precedent to the effect that persons born abroad of a citizen mother prior to 1934 had no claim to citizenship under § 1993, but the cited cases concerned only the statute's construction, and not its facial constitutionality. Villanueva-Jurado, 482 F.2d at 888 (citing Rogers v. Bellei, 401 U.S. 815, 826, 91 S.Ct. 1060, 1066, 28 L.Ed.2d 499 (1971), and Montana, 366 U.S. at 311-12, 81 S.Ct. at 1338-39.) More recently, the Ninth Circuit in Wauchope v. United States Dep't of State, 985 F.2d 1407 (9th Cir.1992), confronted just such an argument, which parallels the one Aguayo makes in this case. In Wauchope, the Ninth Circuit held that § 1993 violates the constitutional guarantee of equal protection to citizen mothers of persons born abroad prior to 1934, that the foreign-born children have standing to assert their mothers' rights, and that federal courts possess the equitable power to remedy the constitutional violation by declaring the children citizens. Id. at 1412-18.

A handful of lower federal courts have reached differing results. Compare United States v. Breyer, 829 F.Supp. 773, 781 (E.D.Pa.1993) (following Wauchope to find § 1993 unconstitutional); United States v. Breyer, 841 F.Supp. 679, 685-87 (E.D.Pa. 1993) (declaring that the pre-1934 foreign-born children of citizen mothers are entitled to citizenship and advising plaintiff to "pursue his claim of citizenship by birth through the appropriate administrative channels"); and Elias v. United States Dep't of State, 721 F.Supp. 243, 249-50 (N.D.Cal.1989) (holding that § 1993 unconstitutionally discriminated against citizen mothers, whose offspring had standing to raise constitutional claims), with Tranter v. Secretary of State, No. 92-1565, 1994 WL 289358, at *2 (D.D.C. May 17, 1994) (declining to reach constitutionality of § 1993 and granting summary judgment to Government on ground of plaintiff's lack of standing, in that foreign-born child's injury was not redressable because district court lacked power to confer citizenship) and Miller v. Christopher, No. 93-1182, slip op. at 5 (D.D.C. April 29, 1994) (rejecting, on same standing ground raised in Tranter, plaintiff's constitutional challenge to federal statute concerning naturalization of illegitimate foreign-born children of citizen fathers).

The Tranter and Miller courts based their holdings largely on INS v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988), in which the Supreme Court discussed the limitations on federal courts' power to grant citizenship. In this case, the Government relies heavily on Pangilinan for its argument that Aguayo has no standing to sue for the putative constitutional wrong because Aguayo's injury is not redressable by the courts. Aguayo responds that this court should follow the lead of the Ninth Circuit in Wauchope, which limited Pangilinan to litigants who were deprived of citizenship by statutory, rather than constitutional, violations. The Government argues further that even if Aguayo can clear the standing hurdle, § 1993 is constitutional under the deferential standard of review federal courts have applied to immigration legislation pursuant to Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Finally, the Government contends that Aguayo's lawsuit should be barred by the doctrine of laches.

ANALYSIS

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This case appears to be particularly appropriate for summary judgment. The material facts are undisputed, leaving only the legal question of whether Aguayo is entitled to the relief she seeks.

I. Standing

The doctrine of standing concerns whether the litigant may have the court decide the particular disputed issues, and it "`involves both constitutional limitations on federal court jurisdiction and prudential limits on its exercise.'" Indemnified Capital Investments v. R.J. O'Brien & Assoc., Inc., 12 F.3d 1406, 1408 (7th Cir.1993) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975)). Article III of the Constitution limits the power of federal courts to the resolution of "cases" and "controversies." U.S. Const. art. III; Foster v. Center Township of LaPorte County, 798 F.2d 237, 240-41 (7th Cir.1986).

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: 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 ... traceable to the challenged action of the defendant, and not ... the 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, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted). Once a litigant satisfies the constitutional elements of standing, the prudential elements remain. Indemnified Capital Investments, 12 F.3d at 1410 (citing Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976)). These prudential limitations generally require litigants to assert their own legal rights and not those of third parties, except where (1) the litigant has suffered an "injury-in-fact," thus giving rise to a "sufficiently concrete interest" in the outcome of the issue in dispute; (2) the litigant has a close relation to the third party, so that the litigant is "fully, or very nearly as effective a proponent of the right" as the third party; and (3) there is some hindrance to the third party's ability to protect his or her own interests. Powers v. Ohio, 499...