Lynch v. Morales-Santana: Equal Protection, Gender Discrimination, and Derivative Citizenship

By Brett Potash, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In November 2016, the Supreme Court heard arguments on a case involving an Equal Protection claim.[1] Luis Ramon Morales-Santana’s father was born in Puerto Rico on March 19, 1900, and obtained United States citizenship in 1917.[2] Twenty days before he turned nineteen years old, he left Puerto Rico to take a job working for the South Porto Rico Sugar Company in the Dominican Republic.[3] In 1962, Luis Ramon Morales-Santana was born in the Dominican Republic to his then unmarried American father and Dominican mother.[4] Morales-Santana was statutorily “legitimated” as a citizen by his father when his parents were married in 1970.[5] He was later permitted to enter the United States as a lawful permanent resident in 1975.[6]

After being convicted of “various felonies” in 2000, Morales-Santana was placed in removal proceedings.[7] He claimed that he obtained derivative citizenship through his father and applied for withholding of the removal on that basis, but an immigration judge denied his application.[8] In 2010, he filed a motion to re-open his case.[9] This time, his motion was based on a violation of the Equal Protection Clause and newly obtained evidence relating to his father.[10] Unfortunately, the Board of Immigration Appeals denied Morales-Santana’s claims for derivative citizenship and therefore denied his motion to re-open.[11] Morales-Santana appealed to the United States Court of Appeals for the Second Circuit.[12]

“The law in effect at the time of birth governs whether a child obtained derivative citizenship as of his or her birth.”[13] The statute in effect at the time of Morales-Santana’s birth was the Immigration and Nationality Act of 1952.[14] Under this Act, a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth if the mother was present in the United States (or one of its “outlying possessions”) for at least one year at any point prior to the birth of the child.[15] Morales-Santana, however, represents a child born abroad to an unwed citizen father and non-citizen mother.[16] For instances such as this, the statute provides that the child have citizenship at birth only if the father was present in the United States (or one of its “outlying possessions”) for periods totaling at least ten years, and at least five of those years being after the father reached the age of fourteen.[17] Morales-Santana’s father did not meet these requirements.[18] Based on this gender discrepancy, Morales-Santana’s principal argument on appeal was that his Fifth Amendment guaranteed rights to Equal Protection had been violated and that unwed fathers should receive the same benefits that unwed mothers receive under the statute.[19]

Attorney General Loretta Lynch argued in the Second Circuit that there are two interests to justify the distinction between mothers and fathers written into the 1952 Act: “ensuring a sufficient connection between citizen children and the United States” and “avoiding statelessness”.[20]

Fortunately for Mr. Morales-Santana, the Second Circuit overruled the Board of Immigration Appeals decision in concluding that “[c]onforming the immigration laws Congress enacted with the Constitution’s guarantee of equal protection . . . Morales-Santana is a citizen as of his birth.”[21] The court stated that “the statute’s gender-based distinction is not substantially related to the goal of ensuring a sufficient connection to the United States.”[22] Attorney General Loretta Lynch responded to this ruling by filing a petition for writ of certiorari, which was subsequently granted on June 28, 2016.[23]

This case brings two issues before the Supreme Court: 1) Whether the Immigration and Nationality Act of 1952’s language to impose a different requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of Equal Protection, and 2) Whether the Second Circuit Court of Appeals erred in conferring United States citizenship on Morales-Santana in the absence of any express statutory authority to do so.[24] Formal arguments took place before the Supreme Court on November 9, 2016, and an official ruling is still pending.[25]

The ruling of this case will have a major impact on foreign-born U.S. citizens both presently, and in the future. While the outcome will obviously affect the citizenship status of Mr. Morales-Santana, it will also affect others seeking derivative citizenship as well. If the Court decides that differences in the mandatory times of physical presence in the United States between genders is unconstitutional, then it may overturn the present-day statute. The present-day statute mandates that for derivative citizenship, a child born out of wedlock’s citizen father must have at least five years of citizenship (two after turning fourteen years old), and if the mother is the citizen, then she still only needs to have just one year of continuous citizenship at any point.[26] The Court may choose to decide that ANY time frame is unconstitutional, not just an equal time frame.

As currently constructed, the Act relevant in Lynch v. Morales-Santana and the present-day statute both suggest that unwed mothers are more responsible parents than unwed fathers. They also suggest that the presence of a marriage at the time of birth exposes a difference in societal expectations regarding parental responsibilities for unwed fathers, but not for unwed mothers.

The Supreme Courts highly anticipated decision should be rendered in early 2017. Its decision will make a powerful statement about how the United States protects the rights of its citizens born abroad, and also how we choose to combat gender discrimination issues.

[1] SCOTUSblog, (last visited Jan. 25, 2017).

[2] Morales-Santana v. Lynch, 804 F.3d 520, 524 (2d Cir. 2015).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Morales-Santana, 804 F.3d at 524.

[8] Id.

[9] Id. at 524-25.

[10] Id.

[11] Id. at 525.

[12] See 804 F.3d 520 (2d Cir. 2015).

[13] See Ashton v. Gonzalez, 431 F.3d 95, 97 (2d Cir. 2005).

[14] Morales-Santana, 804 F.3d at 523.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Morales-Santana, 804 F.3d at 523-24.

[20] Id. at 527-28.

[21] The court determined that an intermediate level standard of scrutiny was proper. Morales-Santana, 804 F.3d at 538.

[22] Id. at 535.

[23] SCOTUSblog, (last visited Jan. 25, 2017).

[24] Id.

[25] Id.

[26] 8 U.S.C. § 1409 (2012).


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