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September 22, 1994

WARREN CHRISTOPHER, Secretary of State, Defendant.


The opinion of the court was delivered by: JOHN F. GRADY

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.


 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, 6 L. Ed. 2d 313, 81 S. Ct. 1336 (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. 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. 1971)). 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, 28 L. Ed. 2d 499, 91 S. Ct. 1060 (1971), and Montana, 366 U.S. at 311-12.) 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, (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. 1987) (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 U.S. Dist. LEXIS 8824, 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, 1994 U.S. Dist. LEXIS 14448, 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, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (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, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977). Finally, the Government contends that Aguayo's lawsuit should be barred by the doctrine of laches.

 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (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, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (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 . . . trace[able] 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, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (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 U.S. 400, 111 S. Ct. 1364, 1370-72, 113 L. Ed. 2d 411 (1991) (quoting Singleton, 428 U.S. at 112, 115).

 A. Prudential Standing Limit.

 It should be noted that in Wauchope, the Ninth Circuit disposed of the Government's standing argument without a searching analysis of standing's constitutional components. Wauchope, 985 F.2d at 1410-11. The Wauchope court stated only that the Government's interpretation of § 1993 operated to deny the plaintiffs citizenship, and "this showing of injury suffices to meet constitutional standing concerns." Id. The Ninth Circuit then went on to hold that the plaintiffs met the prudential requirements of standing, id. at 1411, and there would seem to be hardly any dispute in Wauchope or here that a person denied citizenship for being born abroad of a citizen mother, prior to 1934, can sufficiently allege an injury-in-fact, a close relation to the citizen mother, and some hindrance to the (deceased) mother's pursuit of the claim.

 Moreover, Aguayo's lawsuit should properly be viewed as asserting Aguayo's equal protection rights as well. Although § 1993 applies equally to men and women who were born of citizen mothers prior to 1934, it still disfavors the children of citizen mothers by denying them the benefit it confers on similarly situated children who differ only in that the citizen parent happened to be the father. A statute with a facially discriminatory classification is not saved from judicial review because it applies equally to men and women within the class. See Loving v. Virginia, 388 U.S. 1, 8-9, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967). In Loving, the Supreme Court invalidated a state statute barring interracial marriages. The statute applied equally to men and women, white and black, but the Court stated that "we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations . . . . The fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." Id. In reaching its holding, the Court in Loving referred to marriage as "one of the 'basic civil rights of man,' fundamental to our very existence and survival." Id. at 12 (quoting Skinner v. Oklahoma, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942)). In the present case, the Government asserts that Aguayo can have no constitutional claim because an alien's right to derive citizenship from a citizen parent is grounded in federal statutes, and not the constitution. See Rogers v. Bellei, 401 U.S. 815, 830, 28 L. Ed. 2d 499, 91 S. Ct. 1060 (1971).

 But this argument misapprehends the nature of Aguayo's constitutional claim. Even though the Constitution itself did not confer directly upon Aguayo a right to be a citizen, it did grant her a right to equal protection of the laws. See Plyler v. Doe, 457 U.S. 202, 225 n.21, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982) ("Equal Protection clause operates of its own force to protect anyone 'within [the State's] jurisdiction' from the State's arbitrary action"). Plyler, in which the Supreme Court held that states may not deny illegal alien children access to public education, demonstrates that the "fundamental" nature of the underlying deprivation is relevant to the standard courts will apply on review. The Court in Plyler noted that when a state's action discriminates against a "suspect class" or burdens a fundamental right guaranteed by the Constitution, the action will be upheld only if it is narrowly tailored to promote a compelling government interest. Id. at 216-17. The Plyler Court determined that an illegal alien child's right to a public education was not constitutionally derived but was sufficiently important to warrant an intermediate level of scrutiny for the state's classification. Id. at 221-30. This opinion will discuss the relevant standard for this case in Part II, infra. But in any event, the fact that Aguayo cannot allege a constitutional right to derive citizenship does not defeat her argument that § 1993, by denying her citizenship and granting it to the similarly situated children of citizen fathers, gives her standing to assert a violation of equal protection's command that "all persons similarly circumstanced shall be treated alike." F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920), quoted in Plyler, 457 U.S. at 216; ...

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