Morales-Santana: SCOTUS Makes it Harder for People Born Abroad to U.S. Citizens to Become U.S. Citizens

cross-posted from the citizenshipsolutions blog

by John Richardson


Prologue:U.S. citizenship is not as attractive as it was

One benefit of U.S. citizenship: If one is a U.S. citizen then one cannot be deported from the USA

Some Green Card holders become U.S. citizens. Some do NOT become U.S.
citizens. Many of those Green Card holders become U.S. citizens in order to avoid the possibility of deportation. Deportation results in expatriation and can (among other things) subject the unfortunate Green Card holder to the S. 877A Expatriation Tax, which can result in significant confiscation of assets. In fact, the S. 877A Expatriation Tax discourages people from seeking Green Cards in the first place. That said, it is only Green Card Holders who are “long term residents” who are subject to the Exit Tax.

The plight of Mr. Morales-Santana: No U.S. citizenship = the possibility of deportation

The facts as described by the court:

In 2000, 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.

To be deported or not to be deported – it depends on Mr.
Morales-Santana’s claim to U.S. citizenship

In order to avoid deportation, Mr. Morales-Santana needed to establish that he was a U.S. citizen.

In order for the U.S. Government to deport Mr. Morales-Santana, it needs to establish that he was NOT a U.S. citizen.

If you wanted to argue that Mr. Morales-Santana was a U.S. citizen, then how would you make the argument?

Facts: Mr. Morales-Santana was born (1) outside the USA and (2) out of wedlock. He was NOT born to a U.S. citizen parent who met the U.S. “physical presence requirements” to transmit U.S. citizenship!
How could he then be a U.S. citizen?

Hmmmmmm ….

Interesting. Since Mr. Morales-Santana was NOT “Born In The USA”, we need look to the Immigration and Nationality Act to determine his claim to U.S. citizenship.

Under what circumstances do people born out of wedlock to U.S.
citizen parent(s) have the right to U.S. citizenship?

According to the Immigration and Nationality Act:

8 U.S. Code § 1401 – Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

(JR Comment: Note that at the time of Mr. Morales-Santana’s birth, the statute required a physical presence of 10 years with at least 5 years after the age of 14.)

8 U.S. Code § 1409 – Children born out of wedlock

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—

(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years—
(A) the person is legitimated under the law of the person’s residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.

(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

As explained by U.S. Foreign Service Officer Amelia Shaw in “Citizenship and Unwed Border Moms: The Misfortune Of Geography“, Section 1409(c) creates the following two kinds of differentiation in treatment:

1. Marital Status: A child born outside the United States to an unmarried mother has an easier claim to U.S. citizenship than a child born outside the United States to a married mother (a marriage penalty); and

2. Gender: If a child is born outside the United States to an unmarried couple, the unmarried mother can pass U.S. citizenship more easily to the child than can the unmarried father (a gender penalty – The mother need only establish continuous physical U.S.
presence for a period of one year.)
This distinction (based on the sex of the parent) was what was attacked in the Morales case.

What??? In other words, if a child is born abroad and out of wedlock the mother can transmit U.S. citizenship if she has one year of continuous physical presence in the USA and the father is held to a standard of longer residence. Isn’t this discrimination?

Following this reasoning, the argument made by Mr.
Morales-Santana was that:

1. At the time he was born, his U.S. citizen father could NOT transmit U.S. citizenship to him because he was held to the longer standard of residence (5 years after the age of 14) than would have been required of any U.S. citizen mother (one year of continuous residence). Mr.
Morales-Santana’s father did meet the test of “one year of continuous residence” that would have applied to the mother.

2. The fact that Mr. Morales-Santana’s mother was NOT a U.S. citizen at the time of his birth was irrelevant. If she had been a U.S.
citizen at the time of his birth
the law would have allowed her to transmit citizenship and discriminated against Mr. Morales-Santana’s father who was NOT able to transmit citizenship.

So, Mr. Morales-Santana went off to court to argue that:

1. The nationality laws (discriminated) violated the equal protection rights of his father because if the father had been the mother, the father would have satisfied the requirements to transmit U.S.
citizenship to Mr. Morales-Santana (the father did meet the one year continuous residence requirement).

2. The proper remedy was to give Mr. Morales-Santana’s father the benefit of the rule that would have applied to the mother and grant Mr.
Morales-Santana U.S. citizenship.

Round 1 – Mr. Morales-Santos and the 2nd Circuit – The argument worked. Mr. Morales-Santana had U.S. citizenship conferred on him

The above tweet references an analysis that appeared at the Isaac Brock Society discussing this case. The 2nd Circuit held that:

  • the rule giving a preference to the unmarried mother
    violated “equal protection”; and
  • as a result Mr. Morales-Santana’s father was given the
    opportunity to transmit his U.S. citizenship to Mr.
    Morales-Santana. In other words, the 2nd Circuit conferred U.S.
    citizenship on Mr. Morales-Santana.

Round 2 – Mr. Morales-Santana and the U.S. Supreme Court

A video of the live argument, fascinating …

The decision of the U.S. Supreme Court

The above tweet references the decision of the Supreme Court which (1) allowed Mr. Morales-Santana’s claim based on “equal protection”
violations but (2) did NOT confer U.S. citizenship on him.

The decision of the U.S. Supreme Court – A summary

On June 12, 2017 the Supreme Court of the United States issued its ruling in the Morales-Santana case. The ruling, written by Justice Ginsburg, DID NOT extend U.S. citizenship (avoiding the creation of a new U.S. “tax subject”) to Mr. Morales-Santana.

The Supreme Court’s narrow ruling is of particular interest and is of possible significance for reasons that include:

1. The court made NO mention of any of the obligations of U.S.
citizenship (military service or taxation). Although this is not particularly surprising, it does reinforce the distinction between “who you are” and “what you are required to do”. It’s almost as though there is a “fire wall” around the Immigration and Nationality Act.

2. When considering the purpose of giving a “citizenship preference” to unwed mothers, the Court:

  • considered the context, cultural assumptions and societal
    norms in which the law was enacted; and
  • considered whether those assumptions and societal norms were
    still valid.

This is of interest to Americans abroad who are interested in challenging Cook v. Tait.

There has been considerable discussion about the 1924 Supreme Court decision in Cook v. Tait. The 1924 Judgment in Cook v. Tait, written by Justice McKenna, suggests that the U.S.
Government “by its very nature” benefits its citizens regardless of where they be. Almost 100 years later, there are few Americans abroad, who believe that the U.S. Government benefits them!

3. The court had no problem in ruling that the “benefit” extended to “unwed” U.S. citizen mothers and NOT to “unwed” U.S. citizen fathers violated the “equal protection” guarantees in the U.S. Constitution. The court analyzed the discrimination according to the level of “strict scrutiny”. As a result the Government had the burden of proving the necessity of treating unwed mothers differently from unwed fathers. The Government could not meet that standard of proof. Put it another way:
The court ruled that the benefit extended to unwed mothers at the expense of unwed fathers, violated the principle of equal protection.
The discrimination against Mr. Morales-Santana’s father was impermissible. The question is what should the remedy be?

4. After deciding that there was a violation of the principle of “equal protection”, the court had two options.

Option 1: The court could extend the benefit of “continuous residence of one year” to the father and keep the benefit to unwed mothers intact.

Option 2: The court could END the benefit to unwed mothers and require every person to meet the same test”.

The Court ended the rule that unwed U.S. citizen mothers could transmit U.S. citizenship after one year of continuous residence in the USA (INA 1409(c)). The question is why?

Q. Why did the court elect to NOT extend the more favourable treatment to the father?

A. The court (and this is where it gets really interesting) in deciding to NOT extend citizenship to Mr. Morales-Santana relied on the (presumed Congressional view) that the grant of citizenship should be tied to a connection (including physical) to the United States. (Many people intuitively equate U.S. citizenship with U.S. residence and vice-versa. Additionally, the Internal Revenue Code generally equates “physical presence as a condition for being required to file U.S. taxes“.) This is good news for the growing number of proponents of the view that being “Born In The USA” should NOT be sufficient grounds for automatically becoming a U.S.

5. Justices Thomas and Alito (in a separate judgement) stated that the Court has NO jurisdiction to confer U.S. citizenship on any person (including those born outside the United States). Conferring citizenship can be done ONLY by Congress (or presumably by the 14th Amendment).

6. The court says nothing about the question (of interest to those outside the United States) of whether the granting of U.S. citizenship to those born outside the United States is mandatory or optional. This is not surprising because Mr. Morales-Santana WANTED U.S. citizenship.
(As a U.S. citizen he would NOT be subject to deportation.) The “mandatory” or “optional” question has been the subject of extensive discussion on various blogs.

7. The court essentially “struck down” the rule that unwed U.S. citizen mothers can transmit U.S. citizenship to children born abroad provided that, prior to the birth of the child, the mother had a 12 month continuous physical presence in the United States. (Immigration and Nationality Act 1409(c)).

In summary …

For Mr. Morales-Santana, there is good news and there is bad news.

First, the good news:

Mr. Morales-Santana was successful regarding the “equal protection claim”.

Second, the bad news:

Mr. Morales-Santana was NOT entitled to the “benefit” of his success in establishing his “equal protection claim”.

No U.S. citizenship for Mr. Morales-Santana!!!

John Richardson


Appendix A- The complete decision and synopsis

The complete decision is here:


The synopsis includes:

No. 15–1191. Argued November 9, 2016—Decided June 12, 2017

The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a U. S. citizen and the other a citizen of another nation.
Applicable to married couples, the main rule in effect at the time here relevant, 8 U. S. C. §1401(a)(7) (1958 ed.), required the U. S.-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed U.S.-citizen fathers by §1409(a), but §1409(c) creates an exception for an unwed U. S.-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

Respondent Luis Ramón Morales-Santana, who has lived in the United States since he was 13, asserts 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 §1401(a)(7)’s requirement of five years’ physical presence after age 14. There, he lived with the Dominican woman who gave birth to Morales-Santana. José accepted parental responsibility and included Morales-Santana in his household; he married Morales-Santana’s mother and his name was then added to hers on Morales-Santana’s birth certificate. In 2000, 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’
presence after age 14. An immigration judge rejected MoralesSantana’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.


1. The gender line Congress drew is incompatible with the Fifth Amendment’s requirement that the Government accord to all persons “the equal protection of the laws.” Pp. 6–23.

(a) Morales-Santana satisfies the requirements for third-party standing in seeking to vindicate his father’s right to equal protection.
José Morales’ ability to pass citizenship to his son easily satisfies the requirement that the third party have a “ ‘close’ relationship with the person who possesses the right.” Kowalski v. Tesmer, 543 U. S. 125, 130. And José’s death many years before the current controversy arose is “a ‘hindrance’ to [José’s] ability to protect his own interests.”
Ibid. Pp. 6–7.

(b) Sections 1401 and 1409 date from an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are. Today, such laws receive the heightened scrutiny that now attends “all gender-based classifications,” J. E. B. v.
Alabama ex rel. T. B., 511 U. S. 127, 136, including laws granting or denying benefits “on the basis of the sex of the qualifying parent,”
Califano v. Westcott, 443 U. S. 76, 84. Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications declared unconstitutional in Westcott; Reed v. Reed, 404 U. S.
71, 74, 76–77; Frontiero v. Richardson, 411 U. S. 677, 688–691; Weinberger v. Wiesenfeld, 420 U. S. 636, 648–653; and Califano v. Goldfarb,
430 U. S. 199, 206–207. A successful defense therefore requires an “ ‘exceedingly persuasive justification.’ ” United States v.
518 U. S. 515, 531. Pp. 7–9.

(c) The Government must show, at least, that its gender-based “ ‘classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to [achieving] those objectives.” ’ ” Virginia, 518 U. S., at 533. The classification must serve an important governmental interest today, for “new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___. Pp. 9–14.

(1) At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a nonmarital child. In the 1940 Act, Congress codified the mother-as-soleguardian perception for unmarried parents. According to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their nonmarital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture. Pp. 9–13.

(2) For close to a half century, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia,
518 U. S., at 533. No “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed, 441 U. S. 380, 382, 394. In light of this equal protection jurisprudence, §1409(a) and (c)’s discrete duration-of-residence requirements for mothers and fathers are anachronistic. Pp. 13–14.
(d) The Government points to Fiallo v. Bell, 430 U. S. 787; Miller v. Albright, 523 U. S. 420; and Nguyen v. INS, 533 U. S. 53, for support.
But Fiallo involved entry preferences for alien children; the case did not present a claim of U. S. citizenship. And Miller and Nguyen addressed a paternal-acknowledgment requirement well met here, not the length of a parent’s prebirth residency in the United States. Pp. 14–16.
(e) The Government’s suggested rationales for §1409(a) and (c)’s gender-based differential do not survive heightened scrutiny. Pp. 16– 23.
(1) The Government asserts that Congress sought to ensure that a child born abroad has a strong connection to the United States.
The statute, the Government suggests, bracketed an unwed U. S.­ citizen mother with a married couple in which both parents are U. S.
citizens because she is the only legally recognized parent at birth; and aligned an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien, because of the competing national influence of the alien mother. This rationale conforms to the long-held view that unwed fathers care little about their children.
And the gender-based means scarcely serve the suggested congressional interest. Citizenship may be transmitted to children who have no tie to the United States so long as their U. S.-citizen mother was continuously present in the United States for one year at any point in her life prior to the child’s birth; but it may not be transmitted by a U. S.-citizen father who falls a few days short of meeting §1401(a)(7)’s longer physical-presence requirements, even if he acknowledges paternity on the day the child is born and raises the child in the United States. Pp. 17–19.

(2) The Government also maintains that Congress wished to reduce the risk of statelessness for the foreign-born child of a U. S.
citizen. But congressional hearings and reports offer no support for the assertion that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed U. S.-citizen mothers. Pp. 19–23.

2. Because this Court is not equipped to convert §1409(c)’s exception for unwed U. S.-citizen mothers into the main rule displacing
§§1401(a)(7) and 1409(a), it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, §1401(a)(7)’s current requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers. The legislature’s intent, as revealed by the statute at hand, governs the choice between the two remedial alternatives: extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class. Ordinarily, the preferred rule is to extend favorable treatment. Westcott, 443 U. S., at 89–90. Here, however, extension to fathers of §1409(c)’s favorable treatment for mothers would displace Congress’ general rule, the longer physicalpresence requirements of §§1401(a)(7) and 1409 applicable to unwed U. S.-citizen fathers and U. S.-citizen parents, male as well as female, married to the child’s alien parent. Congress’ “ ‘commitment to th[is] residual policy’ ” and “ ‘the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation,’
” Heckler v. Mathews, 465 U. S. 728, 739, n. 5, indicate that Congress would likely have abrogated §1409(c)’s special exception, preferring to preserve “the importance of residence in this country as the talisman of dedicated attachment,” Rogers v. Bellei, 401 U. S.
815, 834. Pp. 23–28.
804 F. 3d 520, affirmed in part, reversed in part, and remanded.

Appendix B – All the documents related to the Morales-Santana case

Appendix C – The following tweet references one of the better articles on this case