Decision on Lake v. Reno Strikes Down Provision of INA.

By Karen Adelman
for Office.com

Oct 13, 2000— In the contentious area of gender equality in immigration law, the United States 2nd Circuit Court of Appeals has struck down a provision of the Immigration and Naturalization Act on the grounds that it violates the equal protection component of the Fifth Amendment's Due Process Clause. The decision, which was on Lake v. Reno, will likely have bearing on the similar Tuan Ahn Nguyen v. INS, a case just accepted by the Supreme Court for its current session.

The 2nd Circuit's decision reversed the judgement of the Board of Immigration Appeals and stopped the deportation of the petitioner, Frederick A. Lake. The court declared unconstitutional section 309(a) of the INA on Fifth Amendment grounds, saying it burdened US citizen fathers, but not US citizen mothers, in establishing citizenship for their out-of-wedlock children born abroad.

The overturned INA section 309(a) said that to confer citizenship upon an illegitimate, foreign born child, an American father had to establish paternity before the child's 21st birthday. By contrast, under INA section 309 (b) an American mother has only to meet a one year continuous residency requirement to confer citizenship. "It was an irrational distinction based on outmoded gender stereotypes," said Sherry Leiwent, Senior Staff Attorney at NOW Legal Defense and Education Fund, which filed an amicus brief on the case.

Frederick A. Lake, the petitioner, was the illegitimate son of a Jamaican citizen mother and Joseph Lake, a United States citizen. Petitioner Lake, a lawful, permanent resident, was convicted of armed robbery in New York State. The INS began removal proceedings against him after his parole began in 1997.

Lake denied that he was a deportable alien, claiming US citizenship through his father. The father, however, had failed to establish paternity in writing under oath as required by INA section 309(a), and had died just before the removal proceedings had begun. The Immigration Judge concluded that Lake was subject to removal.

Lake's 2nd Circuit appeal renewed the constitutional challenges that the Board of Immigration Appeals had rejected as beyond its jurisdiction: primarily, the unequal treatment of illegitimate children claiming citizenship through their fathers.

The court's decision to strick down 309(a) relied on the 1998 Supreme Court decision Miller v. Albright, although in that decision 309 was upheld. In Miller, said the 2nd Circuit, the Supreme Court "was fragmented, with the justices writing five separate opinions. Six justices accepted arguments of the government, but not the same arguments [...]"

Quoting from another precedent in its decision, the 2nd Circuit called relying on "'nose-count jurisprudence'" "'unfortunate.'" Yet, it continued, "[a]fter analyzing and parsing the opinions of the justices in Miller, we are convinced that the Court would have reached a different result had this case been before it."

Lake and Miller are both likely to be relevant in the upcoming Supreme Court case, Nguyen v. INA. In Nguyen, the petitioner, whose deportation was upheld on appeal by the 5th Circuit, is challenging the constitutionality of 8 USC section 1409 on equal protection grounds. Lake, Miller, and Nguyen are all, said NOW's Leiwent, "exactly the same issue."

"We hope," said Leiwant, "that with Miller and with the precedent from the 2nd Circuit, the Supreme Court will strike this down."

Marvin Smilen, Public Information Officer at the US Attorney's office, said that "The [Lake] opinion is being studied to determine whether to seek ceriori before the US Supreme Court, but no decision has been made."