Sessions v. Morales-Santana

On June 12, 2017, the Supreme Court ruled in the case of Sessions v. Morales-Santana that rules governing the citizenship at birth claims of children born out of wedlock to a US citizen parent and a non-US citizen parent could not discriminate based on whether the US citizen parent was the father or the mother.

The general rule for transmitting citizenship to children born to a US citizen parents and a non-US citizen parent is contained at 8 U.S.C. §1401(a)(7) and for people born when Respondent Luis Morales-Santana was born, a US citizen parent would need to have been married and present in the US for ten years prior to the child’s birth with five of those years after reaching the age of 14.

The rule is applicable as well in cases of unwed parents when the US citizen is the father. When the US citizen parent is the mother and is not married to the father, the rules are different and only requires the mother to have lived in the US for one year prior to the child’s birth.

In this case, Mr. Morales-Santana has lived in the US since the age of 13. His biological father is a US citizen who was born in the US and moved to the Dominican Republic at the age of 19, just 20 days shy of meeting the five years requirement. Morales-Santana was convicted of various criminal charges and the government sought to remove him from the US. Morales-Santana claimed to be a citizen at birth and was rejected by an immigration judge and later challenged the law saying he was denied equal protection because fathers were treated differently than mothers. The case worked its way up to the Second Circuit which held in Morales-Santana’s favor.

The Supreme Court agreed that the statute’s gender line is an unconstitutional violation of the Fifth Amendment’s Equal Protection clause. The government must show that gender-based rules serve important governmental objectives and such rules must be related to meeting those objectives.  Unwed fathers are not less qualified to take responsibility for children so the Government doesn’t survive heightened scrutiny.

The Court ruled that Congress would need to figure out how to select a uniform prescription that neither favored nor disadvantaged any person on the basis of gender. In the interim, the rule applicable to married parents and to unwed US citizen fathers will apply prospectively to children born to unwed US citizen mothers.

Justice Ginsburg was joined by Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan. Justices Thomas and Alito issued an opinion concurring in the judgment in part. Justice Gorsuch took no part in the consideration or decision in the case.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at
Greg Siskind
Share →

2 Responses to Quick Summary – Supreme Court Issues Ruling in Sessions v. Morales-Santana

  1. When I was writing decisions for the Board of Immigration Appeals, the reason given for the distinction between mothers and fathers was evidentiary. The mother’s name would be on the baby’s birth certificate, but the father’s rarely was. No DNA evidence in those days. Also, the mother would raise and care for the baby, typically without help from the father. So if ten years later the father asserted his paternity, how would he prove it?

    In other words, the concern was the potential for fraudulent claims, not gender.

    On the other hand, if the father’s name was on the birth certificate and he had a paternal relationship with the child….

    Of course, that was a long time ago, and I don’t have a great memory.

    How did this become a constitutional law issue?

    • Greg Siskind says:

      This does seem to be one of the last vestiges of blatant gender discrimination in the immigration system. In the age of DNA testing, I don’t think the birth certificate question is so meaningful anymore on the fraud issue. And on the second issue, we’re in an age where we recognize that fathers are as important as mothers and joint custody is the norm rather than a surprising development. Also, the immigration system has evolved to treat same-sex marriage as equal to opposite-sex marriage and same-sex parenting as equal as well which makes this rules seem even more antiquated.

%d bloggers like this: