Ruben Flores-Villar filed suit to challenge the federal statutory scheme relating to the citizenship of a child born outside of the United States to unwed parents, where the mother is a foreign citizen and the father is a U.S. citizen. Flores-Villar was born in Tijuana Mexico in 1974 to a United States citizen biological father and a Mexican biological mother. He was brought to the United States by his father at two months and had almost no contact with his biological mother. Flores-Villar was convicted of importing marijuana in 1997, convicted of two counts of illegal reentry in 2003, and deported a total of six times between 1998 and 2005.
In 2006 Flores-Villar was arrested again and charged with being an alien found in the U.S. after removal. 8 USC § 1326(a) and (b). While the case was pending he applied for Form N-400, a certificate of citizenship. The application was denied on the ground that it would have been physically impossible for his biological father, who was 16 years old when he was born, to have been physically present in the U.S. for five years after his 14th birthday, as required by former 8 USC §1401(a)(7). When the denial was challenged in U.S. District Court, the decision also excluded any evidence of derivative citizenship on the same grounds. U.S. v. Flores-Villar, 497 F.Supp.2d 1160 (S.D.Cal. 2007).
On appeal, the Ninth Circuit affirmed the district court decision, concluding that (1)Flores-Villar was not deprived of equal protection rights by different residency requirements for unwed mothers and fathers under a former INA provision, (2) he lacked standing to assert the substantive due process rights of his father, (3) he was not deprived of a defense in violation of the Sixth Amendment, and (4) his conviction was supported by sufficient evidence. U.S. v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008).
After The case was granted certiorari by the Supreme Court in March 2010, Flores-Villar had argued that the residence requirements imposed by the former law had no biological basis because there was no reason to believe that mothers are more adept at forming ties to the U.S. than fathers, making the gender distinction a violation of equal protection, distinguishing his case from Nguyen v. INS, 530 U.S. 53 (2001), which upheld a gender distinction in citizenship law where it found a biological basis, i.e., the strong parentage ties formed when a mother gave birth to a child. In response, the government, represented by then-Solicitor General Elena Kagan argued that the distinction found by the Ninth Circuit was correct, and that Flores-Villar lacked prudential standing to litigate the parental rights of his biological father.
Recognizing the issues of birthright citizenship and plenary power invoked by the parties’ claims, IRLI submitted a friend-of-the-court brief. IRLI advocated on behalf of the government’s position stating that Congress had exclusive power to formulate rules pertaining to citizenship. Under the plenary power, IRLI argued, Congress had authority to enact differing rules for citizenship at birth according to gender, which were not subject to judicial review. First, the plenary power over citizenship was not subject to a higher level of scrutiny in the field of citizenship than in other areas where the doctrine applies, for instance immigration, naturalization, and foreign affairs. The amicus brief describes how neither the Founding Fathers, nor the ratifiers of the Fourteenth Amendment after the Civil War, sought to limit this plenary power to exclude citizenship law, and considered them integrally related under the international law of sovereign self-preservation.
The IRLI brief surveyed historical developments in constitutional law, including Supreme Court decisions between 1875 and 2001, the Anglo-American tradition of jurisprudence dating back to Calvin’s Case (1608), and the history of the debates of the Framers, the subsequent ratification of the Constitution, and the discourse concerning the 1798 Alien Act. IRLI concluded that this legal and historic support for the Court’s longstanding Plenary Power Doctrine concerning citizenship, should be evoked by the Supreme Court in affirming the decision of the Ninth Circuit.
The decision of the Ninth Circuit was upheld by an equally divided Supreme Court, but without a written opinion explaining its reasoning. Kagan, by then an associate justice, took no part in the decision. 559 U.S. 1005 (2011).