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It was March 31, 1998 — Frederick Lake’s 45th birthday — when he arrived for a scheduled meeting with his parole officer. Free since the previous summer after serving six years for an armed robbery he says that he did not commit, he had returned to his wife and two children and was trying to reclaim his life, working as a mechanic in a tough section of Brooklyn. But the U.S. Immigration & Naturalization Service had a different plan: deportation. Two INS agents, who put Lake in handcuffs, offered to send him back to his native Jamaica the next day if he would sign some papers. Otherwise, one agent warned, his ordeal would last longer, and he would be deported anyway. Lake, whose late father was a U.S. citizen, didn’t sign. Instead, he became a member of a group challenging a federal law that makes it harder for the illegitimate, foreign-born children of male U.S. citizens than similar children of female U.S. citizens to become citizens themselves. It’s not an idle challenge. Many experts think that the U.S. Supreme Court will void the law on equal protection grounds when it hears oral arguments involving another illegitimate child in Nguyen v. INS, a case from the 5th U.S. Circuit Court of Appeals. Such a ruling would broaden the options available to immigration lawyers like those who helped Lake. But experts say that an even broader impact on immigration practitioners will result if the justices adopt, as some expect, a heightened scrutiny standard for reviewing the law. Such an analysis, immigration lawyers say, would turn the tide on years of judicial timidity in reviewing INS actions, making the agency more accountable while possibly jeopardizing some recent immigration law changes. “The whole thing here is the fabulous, unquestioned analysis of this under heightened scrutiny and not an extreme deference standard,” says Claudia Slovinsky, a New York immigration lawyer who worked on Lake’s case. She predicts that the Nguyen case will “change the judicial culture.” THE WOES OF MR. LAKE A lawful permanent resident of the United States after he married a U.S. citizen, Lake was convicted of the May 18, 1991, armed robbery of a payroll delivery to the Signal Transformer Co. in Inwood, N.Y. At trial, he claimed to have been in Jamaica on the day of the crime and had a stamped passport to prove it. But a Jamaican immigration official testified that the stamp was not dispositive, and Lake was convicted on the testimony of three eyewitnesses. He spent six years in prison, writing letters to state and federal officials seeking assistance. In early 1997, a senior Jamaican government official who had inquired into the matter at Lake’s request determined that he had in fact been in Jamaica. A second letter, mailed in 1996 by Lake to criminal defense attorney Peter Neufeld, was passed on to Neufeld’s then-officemate, John D.B. Lewis, a sole practitioner who handles inmate and police misconduct work. Despite initial skepticism, Lewis says, he became convinced of Lake’s story. When he received news of the report from the Jamaican government, Lewis, rather than challenging the conviction, decided to use it at Lake’s parole hearing. Lake acceded to a three-month delay of his hearing, allowing his lawyers to prepare a 121-page filing that succeeded in getting him paroled on July 15, 1997. But Lewis knew that under federal laws passed during Lake’s incarceration, the underlying conviction now exposed Lake to deportation under federal law because he had been convicted of an “aggravated felony.” He tried in vain for months to have the conviction vacated, nervously waiting for the INS to pounce. Then, Slovinsky gave Lewis an idea. “You know,” Lewis recalls her saying, “he might be an American citizen.” Lake is the Jamaican-born son of Joseph A. Lake, a U.S. citizen, and Edith White, a Jamaican citizen, who never married. Under Section 309(a) of the Immigration and Naturalization Act of 1952, the elder Lake would have had to acknowledge paternity before Frederick’s 21st birthday for his child to become a U.S. citizen — which he didn’t. But under Section 309(c), illegitimate, foreign-born children of citizen mothers need only show that their mother was present in the U.S. for a year before they gave birth. The law’s gender differential, say lawyers, is rooted in the assumption that men are less likely than women to provide for their illegitimate children. Originally, immigration law favored men. After World War II, that was changed, perhaps as a result of the United States’ entrance into the Korean War and the attendant increase in illegitimate children fathered by American G.I.s. Lewis’ decision to challenge the law led to a Sept. 12 ruling by the 2nd Circuit this year, declaring it unconstitutional. That decision agreed with a 1999 ruling by the 9th Circuit in a similar case. In Nguyen, on the other hand, the 5th Circuit denied the citizenship claim of the Vietnamese son of a U.S. citizen who had appealed an INS effort to deport the son for a felony conviction. The Supreme Court granted certiorari on Sept. 26. The 9th circuit case, U.S. v. Ahumada-Aguilar, decided last year, was the first court of appeals ruling addressing the gender issue, and according to a lawyer involved in the case, it raised additional equal protection questions not addressed by Nguyen or Lake. Mexican-born defendant Ricardo Ahumada-Aguilar appealed his conviction for illegal re-entry by an alien with prior felony convictions, arguing that he was not an alien since his father was a U.S. citizen. His Mexican mother, Genoveva Hernandez, then 19, met U.S. citizen Frederick J. Deutenberg, 50, in Nogales, Mexico, in 1970. They spent six months traveling together in the United States, during which time she became pregnant. Ricardo was born in Guadalajara in December 1971, after Hernandez had returned to Mexico. In 1985, she gained legal residency by marrying another U.S. citizen, and eventually she obtained permanent resident alien status for her son. At age 18, Ricardo was arrested for cocaine possession, and a year later was slated for deportation. The 9th Circuit ruled that the federal law requiring legitimation of children born of male U.S. citizens violates their equal protection rights. Ahumada-Aguilar’s lawyer, Seattle Assistant Federal Public Defender Jay Stansell, says that the case highlights differing residency requirements for male U.S. citizens seeking to legitimate their child as compared to female citizens, and a requirement that male citizens provide financial support to such a child. “By asserting that it’s immigration, can you essentially avoid the Constitution? The government’s position is that the agency should be given deference,” says Stansell, adding that the government has taken the same position in Reno v. Ma, another immigration case before the Supreme Court, involving the government’s ability to indefinitely detain long-time resident aliens. HIGH COURT READY TO ACT? Several immigration law experts contend that the Supreme Court, in Miller v. Albright, a 1998 case similar to the three circuit cases, was ready to rule the gender differential unconstitutional but was hobbled by a standing issue. Martha Davis, on leave from her post as legal director at the National Organization for Women Legal Defense Fund and a visiting professor at Union University’s Albany Law School, will likely argue before the high court on Nguyen’s behalf. She says that Miller “makes it pretty clear that we have at least five justices that say that this law fails heightened scrutiny.” Although some experts, such as ACLU Immigrants’ Rights Project Director Lucas Guttentag, are more cautious in assessing the impact of a ruling in Nguyen’s favor, Slovinsky theorizes that such a ruling would call into question the deference that courts have traditionally paid to the INS. At issue would be the U.S. Supreme Court’s 1977 ruling in Fiallo v. Bell, 430 U.S. 787, she says, which helped establish the deference standard. “Every time an immigration lawyer goes into court to request review of the way the INS has acted on a particular case, it’s in the air — it’s so incredibly imbued in the system and you see federal judges saying ‘Oh, this is an immigration case, I should back off,’ ” she says. Both Slovinsky and Lewis contend that some immigration judges are now holding off on deportations like that in the case of Lake, and instead are waiting for the Supreme Court to rule in Nguyen. Deputy Solicitor General Edwin S. Kneedler would not comment on the Nguyen case or the overall INS policy. Another Justice Department lawyer, however, says that the government is unlikely to change its position that additional legitimation requirements for the foreign-born, out-of-wedlock children of male U.S. citizens serve an important governmental objective and should not be subjected to heightened scrutiny. In a response to Nguyen’s petition for a writ of certiorari, the Justice Department quotes the 5th Circuit’s opinion, saying that the statute encourages “healthy parent-child relationships while the child is a minor, and foster[s] ties between the foreign born child [and] the United States.” Nevertheless, the government favored the grant of certiorari. Jonathan S. Franklin, a lawyer at Washington D.C.’s Hogan & Hartson who worked pro bono on Lake’s appeal, says that a ruling in favor of Nguyen would probably result in the court’s simply striking the provisions of the law that impose extra burdens on male citizens. Because the three cases are seeking recognition of a right supposedly already in existence rather than a new grant of citizenship, he says, retroactivity is not an issue. Franklin says it is unlikely there will be a flood of petitioners pouring into INS offices seeking citizenship. “There would be some people even under this ruling who might have difficulty actually proving who their father was,” he says, explaining that the requirement that a petitioner establish that his or her father was in fact a U.S. citizen would remain unaffected by any ruling handed down by the high court. Lewis notes that criminal defense attorneys may benefit as well, having long been forced to provide some clients with a Hobson’s choice. “If you represent a noncitizen, you literally can’t take a plea. You might have a perfectly wonderful disposition as a criminal law matter, but [pleading guilty still] consigns that person to deportation,” he says. “This is the only place in the citizenship statute … where there is still discrimination between mother and father,” says Nancy A. Falgout, a Houston immigration lawyer representing Nguyen. “The government is saying that the Congress has plenary power over all areas where it has to do with immigration law. What we say is they are right, [but] we are not talking about the immigration of the children of foreigners.” Despite warm words for his lawyers, Frederick Lake remains embittered by the events of his 45th birthday. “The [INS agents] said to me I had slipped through the cracks. I said, ‘How can this be happening to me?’ I started questioning God,” recalls Lake. “I got a raw deal — I didn’t do the crime. Finally, justice may be served.”

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