Morales-Santana v. Lynch - 792 F.3d 256 (2d Cir. 2015)

Rule:

Under 8 U.S.C.S. § 1409(c) (1952 version), an unwed citizen mother confers her citizenship on her child (born abroad to a non-citizen biological father) so long as she has satisfied the one-year continuous presence requirement prior to the child's birth. The single year of presence by the mother can occur at any time prior to the child's birth — including, for example, from the mother's first birthday until her second birthday. An unwed citizen father, by contrast, faces much more stringent requirements under 8 U.S.C.S. §1409(a) (1952 version), which incorporates 8 U.S.C.S. § 1401(a)(7). He is prevented from transmitting his citizenship (to his child born abroad to a non-citizen mother) unless he was physically present in the United States or an outlying possession prior to the child's birth for a total of at least 10 years. Because five of those years must follow the father's fourteenth birthday, an unwed citizen father cannot transmit his citizenship to his child born abroad to a non-citizen mother before the father's nineteenth birthday. Eighteen-year-old citizen fathers and their children are out of luck.

Facts:

Luis Ramon Morales-Santana asked the court to review a March 3, 2011 decision of the Board of Immigration Appeals ("BIA") denying his motion to reopen his removal proceedings relating to his claim of derivative citizenship. Under the statute in effect when Morales-Santana was born — the Immigration and Nationality Act of 1952 (the "1952 Act") — a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child's birth. By contrast, a child born abroad to an unwed citizen father and non-citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child's birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed fathers. On appeal, Morales-Santana argued principally that this gender-based difference violates the Fifth Amendment's guarantee of equal protection and that the proper remedy is to extend to unwed fathers the benefits unwed mothers receive under § 1409(c). 

Issue:

Did the BIA erroneously deny Morales-Santana derivative citizenship at birth through his father?

Answer:

Yes

Conclusion:

The court held that the BIA erroneously denied Morales-Santana derivative citizenship at birth through his father because under the statute in effect when the alien was born, 8 U.S.C.S. §§ 1401(a)(7), 1409(a), (c) (1952 version), derivative citizenship for a person born outside the U.S. only required one year's presence in the U.S. when based on the mother's presence, but required 10 years' physical presence in the U.S. when based on the presence of the father, and this gender-based distinction violated Fifth Amendment Equal Protection because it was not substantially related to an actual and important government objective. The remedy for this equal protection violation required the conclusion that the alien was a U.S. citizen as of his birth.