The gender-based distinction infecting 8 U.S.C.S. §§ 1401(a)(7) and 1409(a) and (c) violates the equal protection principle. However, a court must adopt the remedial course Congress likely would have chosen had it been apprised of the constitutional infirmity. Although the preferred rule in the typical case is to extend favorable treatment, this is hardly the typical case. Extension would render the special treatment Congress prescribed in § 1409(c), the one-year physical-presence requirement for U.S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U.S.-citizen parent and one foreign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, § 1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers.
Respondent Luis Ramn Morales-Santana, who has lived in the United States since he was 13, asserted U.S. citizenship at birth based on the U.S. citizenship of his biological father, José Morales. José moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy 8 U. S. C §1401(a)(7)s requirement of five years' physical presence after age 14. There, he assumed family life with the Dominican woman who gave birth to the respondent. The Government sought to remove Morales-Santana based on several criminal convictions, ranking him as alien because, at his time of birth, his father did not satisfy the requirement of five years' physical presence after age 14. An immigration judge rejected Morales-Santana's citizenship claim and ordered his removal. Morales-Santana later moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution's equal protection guarantee. The Board of Immigration Appeals denied the motion, but the Second Circuit reversed. Relying on this Court's post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. To cure this infirmity, the Court of Appeals held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen.
Is the gender line that the Congress drew incompatible with the Fifth Amendments requirement that the Government accord to all persons “the equal protection of the laws.”?
8 U.S.C.S. §§ 1401 and 1409(a) and (c), by imposing a gender-based differential concerning acquisition of U.S. citizenship by a child born abroad, when one parent was a U.S. citizen and the other a citizen of another nation, violated the equal protection provisions of the Fifth Amendment. The § 1409(c) exception for unwed U.S.-citizen mothers to the generally applicable, longer physical-presence requirement was not sufficiently linked to either a desire to ensure a connection between the child and the U.S. or the prevention of statelessness. The Court declined to grant the child of an unwed U.S.-citizen father the benefit that § 1409(c) gave to unwed U.S. citizen mothers, as it appeared that Congress would have abrogated the exception in favor of preservation of the general rule.