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A statute that grants citizenship to the children born abroad of American mothers, but does not do the same for children of American fathers, has been found unconstitutional by the U.S. 2nd Circuit Court of Appeals. The court found in Lake v. Reno, 99-4125, that a section of the Immigration and Nationality Act (INA) violated the right to equal protection under the law, and that Frederick A. Lake, the Jamaican-born son of an American father, was a citizen of the United States. At issue is Section 309(a) of the INA, which confers citizenship on a child born out of wedlock if the father, an American citizen, establishes the child’s paternity before the child reaches age 21. In contrast, Section 309(c) states that a person born outside of the United States to a mother who is a U.S. citizen is a citizen if the mother had previously been “physically present” in the U.S. for a “continuous period of one year.” Frederick Lake was convicted of armed robbery in a New York State court in 1991 and served a prison sentence until 1997, the year that his father, Joseph Lake, died. Facing deportation, Lake challenged the constitutionality of Section 309(a), arguing that the INA does not impose the same burden for citizen mothers and therefore violates his right to equal protection. The Board of Immigration Appeals, upholding the ruling of an immigration judge, denied Lake’s request for a termination of removal proceedings and ordered him removed. The BIA also found that it lacked jurisdiction to consider Lake’s constitutional challenges. On appeal, Circuit Judge John M. Walker Jr., said the first issue to be resolved was one of standing. He said that “like the proverbial 800-pound gorilla, a Supreme Court decision sits squarely in the middle of this case.” The case is Miller v. Albright, 523 U.S. 420 (1998), which Walker said involved a challenge that was “nearly identical” to the Lake case. In Miller, a daughter born abroad to an American citizen father asserted an equal protection claim on behalf of her father. The case was decided 6-3, with the majority, for a variety of reasons, accepting the arguments of the government to uphold the statute. Five different justices wrote opinions. Three justices dissented, saying they believed Section 309 was unconstitutional. Two other justices said they would agree that the statute was unconstitutional, but declined to reach that result because, in their view, the plaintiff in Miller lacked standing to bring the challenge. While the majority in Miller declined to rule the statute was unconstitutional, Walker said that “after analyzing and parsing the opinions of the justices in Miller as the law of the circuit suggests we should, we are convinced that the Court would have reached a different result had this case been before it.” Walker said seven of the nine justices in Miller had no problem with the petitioner’s standing in that case, and logically, would have accepted that Lake had standing in this case. “Joseph Lake died before the INS commenced removal proceedings against his son,” he said. “At the time that the necessity for Lake’s constitutional challenge became apparent, Joseph Lake was irrevocably and finally hindered from vindicating his own rights, and we will not speculate as to his earlier intentions.” FIFTH AMENDMENT CITED Having decided that Frederick Lake had standing, Walker said the 2nd Circuit believed that the Supreme Court, subjecting the statute to heightened scrutiny, “would have found the government’s justification for the statute insufficient to satisfy that standard.” “We hold that Section 309(a) violates the equal protection rights of citizen fathers as guaranteed by the Fifth Amendment,” he said. The court said that the “gender-based distinction mandated” by Section 309(a) of the INA violates Joseph Lake’s right to equal protection. The court went on to reject a final claim of the government that the 2nd Circuit has no authority to grant citizenship. While the court agreed it does not have such authority, Walker said that “Lake is not an alien who seeks naturalization as an equitable remedy.” “It is Lake’s claim that Congress conferred citizenship upon him at birth, and he merely asks the court to recognize his status, not to confer citizenship.” Senior Circuit Judge James L. Oakes and Judge Damon J. Keith of the 6th U.S. Circuit Court of Appeals joined in the opinion. Lake was represented by John D.B. Lewis, Jonathan S. Franklin and Lorans F. Herbert of Washington, D.C.-based Hogan & Hartson; Claudia Slovinsky and Lucas Guttentag of the Immigrants Rights Project; and Sara L. Mandelbaum of the American Civil Liberties Union. Assistant U.S. Attorneys Diogenes P. Kekatos and Gideon A. Schor represented the government.

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