Elias v. US Dept. of State

• Decision Date: 07 June 1989
• Docket Number: No. C-88-0854 RFP.,C-88-0854 RFP.
• Parties: Martha ELIAS, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants.
• Court: U.S. District Court — Northern District of California

721 F. Supp. 243

Martha ELIAS, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants.

No. C-88-0854 RFP.

United States District Court, N.D. California.

June 7, 1989.

Susan Eglehart, Penelope A. Chronis, James M. Byrne, San Francisco, Cal., for plaintiff.

Susan L. Kamlet, Asst. U.S. Atty., San Francisco, Cal., for defendants.

AMENDED ORDER

PECKHAM, District Judge.

I. INTRODUCTION

Defendants denied plaintiff a United States passport on the ground that plaintiff is not a United States citizen. Plaintiff, whose mother was an American citizen, argues that the applicable statute, which grants citizenship to the foreign-born offspring of male American citizens but not female American citizens, violates her right to the equal protection of the laws.

There is no dispute as to the relevant facts. The parties have filed cross motions for summary judgment.

II. BACKGROUND

The plaintiff's mother, Bertha Dirksen, was born a United States citizen in Nebraska in 1889. Some time between 1900 and 1910, Ms. Dirksen moved to Canada. She married a Canadian citizen, plaintiff's father, in Canada in 1910. The plaintiff was born in Canada in 1921.

The plaintiff's father died in 1964. Ms. Dirksen visited the United States throughout her life before passing away in 1969.

Plaintiff applied for a United States passport on October 2, 1987. The State Department denied her request on the ground that she is not a United States citizen. Plaintiff exhausted her administrative remedies and commenced this action. She challenges the State Department's determination that she is not a United States citizen.

III. DISCUSSION

A. Introduction

The Supreme Court in Rogers v. Bellei, 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971), distinguished between Fourteenth Amendment citizenship and citizenship bestowed by the power of Congress pursuant to Article I, section 8, paragraph 4 of the Constitution. The Fourteenth Amendment grants citizenship to "all persons born or naturalized in the United States...." If a person qualifies for such citizenship, Congress cannot take it away absent the assent of that person. Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Plaintiff does not qualify for such citizenship. Thus, her claim to citizenship depends upon Congress' exercise of its power to grant citizenship to non-naturalized persons and those not born within the United States.

Article I, section 8, paragraph 4 of the Constitution gives Congress the power "to establish an uniform Rule of Naturalization...." Congress exercised this power by providing in Section 1993 of the Revised Statute of 1874 (hereinafter "statute") that

all children heretofore born or thereafter 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.

Under section 1993, only a United States citizen-father could transmit United States citizenship to a child born outside of the United States; a United States citizen mother could not. Congress amended section 1993 via the Act of May 24, 1934, 48 Stat. 797, to provide that either parent could transmit his or her United States citizenship to foreign born offspring. The 1934 Act was not retroactive, however.¹

In the instant case, Section 1993 — the statute then in effect — does not provide Ms. Elias with American citizenship. Even though Ms. Elias would be awarded citizenship if her father rather than her mother were a citizen, the statute makes Ms. Dirksen's United States citizenship irrelevant. Under its terms, Ms. Dirksen is not allowed to pass on her citizenship to her daughter even though a male in her position could.

Plaintiff attacks the constitutionality of section 1993 on both her own and her mother's behalf. In addition to claiming that she is deprived the equal protection of the laws, plaintiff on behalf of Ms. Dirksen asserts that the statute discriminates against female United States citizens because it allows citizen fathers but not citizen mothers to pass on their citizenship to their foreign-born offspring.

B. The Non-Citizen Challenge

At the outset, we recognize that we apply a significantly different standard of review to the claims of an unadmitted alien than to the challenge of a United States citizen. The Supreme Court has stated clearly that "an unadmitted and non-resident alien has no constitutional right of entry to this country." Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). In that same opinion, however, the Supreme Court indicated that United States citizens' rights can be implicated by immigration decisions. 408 U.S. at 764-65, 92 S.Ct. at 2582-83. If they are, the Court has required that the government provide at least a "facially legitimate and bona fide" rationale for such infringement. 408 U.S. at 769, 92 S.Ct. at 2585.

With regard to plaintiff's own claims, the Fifth Circuit rejected a similar challenge by an unadmitted alien to the constitutionality of Section 1993. In Villanueva-Jurado v. Immigration and Naturalization Serv., 482 F.2d 886 (5th Cir.1973), the petitioner, born in Mexico in 1932, could claim citizenship under Section 1993 or not at all. As in the instant case, petitioner's mother was a United States citizen but his father was not. In the context of a review of a deportation order, petitioner argued that the statutory distinction between the foreign-born offspring of American fathers and mothers constituted "invidious discrimination forbidden by the Constitution." Id. at 887. In language closely resembling the above-quoted passage from Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), decided several months later, the Fifth Circuit disagreed.

An alien has no constitutional right to citizenship which is a privilege conferred as a matter of grace by Congress under Article I, § 8 of the United States Constitution....

Id., quoting Hein v. United States Immigration and Naturalization Serv. 456 F.2d 1239, 1240 (5th Cir.1972). The court went on to state that "Congress has a completely free hand in defining citizenship as it relates to persons born abroad." Villanueva-Jurado, supra, 482 F.2d at 887, quoting United States v. Trevino Garcia, 440 F.2d 368, 369 (5th Cir.1971).

Plaintiff attempts to distinguish Villanueva-Jurado on two grounds. First, she notes that the case was decided two years before Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), which held that gender discrimination is subject to "heightened scrutiny." Implicit in this argument, however, is the assumption that the Villanueva-Jurado court subjected section 1993 to a "rational basis" standard of review, and that a more stringent standard is appropriate in light of Craig v. Boren. This is incorrect. The Villanueva-Jurado court specifically declined to determine whether the statute was "unreasonable, arbitrary, or unlawful" since an unadmitted alien had no basis from which to mount a constitutional challenge to a Congressional statute. In short, given that the grant of citizenship was one of congressional grace, the court subjected the statute to no scrutiny at all.

Second, plaintiff argues that the basis of the Villanueva-Jurado court's decision is unclear, and that in any event the equal protection clause is not mentioned. Indeed, if the equal protection clause did apply, it is doubtful that this statute could withstand even the most deferential scrutiny. The court's failure to consider the applicability of the equal protection clause is unsurprising, however, in light of its conclusion that Article I, section 8 grants of citizenship are not subject to constitutional limitation by an unadmitted alien.²

The reasoning of the Fifth Circuit is, of course, not binding on this court. With all due respect to that tribunal, it is possible that recent case law recognizing at least limited judicial scrutiny of immigration legislation and the advances made by women in the intervening sixteen years warrant a re-examination of its rationale. In that regard, we note that plausible grounds may exist to at least support plaintiff's challenge on her own behalf.³ Rather than attempt to weigh the current validity of the Fifth Circuit's approach, however, we now turn to assertions that neither the Fifth Circuit nor other reviewing courts have assessed: that the statute discriminates against United States citizen females rather than the unadmitted alien.

C. The Citizen's Challenge

1. Plaintiff's Standing for Ms. Dirksen's Claims

In order to weigh the merits of Ms. Dirksen's challenge, we first must establish whether plaintiff has standing to sue on her behalf. As an initial matter, we emphasize that the government does not dispute that plaintiff should be allowed to assert whatever rights her deceased mother might have. To its credit, it states:

Although it is unclear how many persons similarly situated to plaintiff's mother exist, such person's rights, if any, could conceivably be diluted by an adverse ruling on plaintiff's constitutional claim in this case. The interests of plaintiff and any rights her mother may have possessed with regard to § 1993 appear to be mutually interdependent.... Given these considerations, it appears that the prudential doctrine prohibiting standing to assert the rights of a third party might be relaxed to allow plaintiff to assert her mother's rights, if any, with regard to § 1993.

Defendant's Supplemental Brief at 4.

As a general rule, a party to whom a statute may constitutionally be applied may not challenge that statute on the grounds that the statute may conceivably be applied unconstitutionally to others. Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976); Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439...