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.
Latest posts by Greg Siskind (see all)
- Siskind Summary – Immigration Innovation Act of 2018 (“I-Squared”) - January 28, 2018
- How Immigration Functions Will be Impacted by a Government Shutdown - January 18, 2018
- 12 Things to Know About Entrepreneur Parole - December 14, 2017