Immigration Law and the U.S. Constitution
Posted Oct 20, 2000

In this article of the MurthyBulletin, we are pleased to discuss the overlap between the U.S. Constitution, which is considered the fundamental bedrock for all other laws in the United States, and U.S. Immigration law, which primarily affects non-U.S. citizens.

The U.S. Constitution requires that there will be equal protection of the laws for various classes of people. Section 309 of the Immigration and Nationality Act (INA), however, established an exception to the general provision of equal protection by allowing children born outside of the U.S. to a U.S. citizen mother to acquire automatic citizenship at birth, while the out-of-wedlock children of a U.S. citizen father cannot establish their right to U.S. citizenship unless the father takes certain steps to establish the father-child relationship.

In the case of Nguyen v. INS (Fifth Circuit 2000) the Fifth Circuit held that a father has the right to bring an equal protection challenge under INA Section 309, but the opinion also held that Section 309 does not violate the Equal Protection guarantees under the US Constitution. In a more recent case, the Ninth Circuit agreed with the petitioner that INA Section 309 is unconstitutional because it violates a father's equal protection rights.

Such cases often reveal that after a law is finally passed after much debate and political pressure from all sides, the law can also be challenged on the basis that it violates the fundamental due process rights available to all of us -- citizens and non-citizens -- under the U.S. Constitution.