Should U.S.- citizen fathers be treated the same as U.S.- citizen mothers? Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to unmarried parents—a father who was a U.S. citizen and a mother who was not. Although Morales-Santana became a permanent resident of the U.S. in 1975, the issue of citizenship came up when the federal government initiated deportation proceedings against him.
Asserting he was in fact a U.S. citizen, the government denied Morales-Santana citizenship status on the grounds that his father didn’t meet residency requirements to transfer citizenship. Morales-Santana argued the relevant law was a violation on equal protection grounds and the Supreme Court decided to take this issue head on when they heard oral arguments in early November.
Under the law at the time of his birth, Morales-Santana could only be considered a U.S. citizen if his father had lived in the U.S. for at least 10 years before Morales-Santana’s birth, with at least 5 of those years being after turning 14. Morales-Santana’s father couldn’t meet those requirements because he moved to the Dominican Republic just 20 days shy of meeting that 5-year prong of the law. Had Morales-Santana’s mother been a U.S. citizen at the time of his birth, he would have automatically been a U.S. citizen despite being born outside the U.S.
Sound like a double standard? We know the 5th Amendment affords equal protection from the federal government and the U.S. Court of Appeals for the 2nd Circuit sided with Morales-Santana and ruled the laws governing citizenship for the children of unmarried parents violated the U.S-citizen father’s constitutional right to be treated the same as a U.S.-citizen mother.
Equal Protection under the 5th Amendment
The legal requirements can get pretty complex because the specifics of certain immigration laws have changed quite often throughout the years, but Morales-Santana had 2 ways of gaining citizenship (other than naturalization):
- Children born outside the U.S. of parents, one of whom is an alien, and the other a U.S. citizen who, prior to the birth of the child, was physically present in the U.S. for periods totaling not less than 10 years, at least 5 of which were attained after the age of 14, can be citizens so long as the paternity of such child is established and legitimized before the child reaches age 21.
- Children born outside of the U.S. and outside of wedlock, acquire the nationality of the mother, if the mother is a U.S. citizen at the time of birth and has lived in the U.S. for a period of one continuous year (at any time in her life) before the child’s birth.
As you can see, residency requirements are quite different, making it harder for children of U.S.-citizen fathers than children of U.S.-citizen mothers. Morales-Santana couldn’t gain citizenship under the portion of the law that transfers citizenship from a U.S.-citizen mother since his mother wasn’t a citizen and, although Morales-Santana’s father was in fact a U.S. citizen, he didn’t meet the residency requirements of the law.
Despite the fact that Morales-Santana’s father was only 20 days away from meeting the residency requirements, why in the world should a U.S.-citizen father have to meet longer residency requirements than a U.S.-citizen mother?
Federal Government Disagrees
U.S. Attorney General Loretta Lynch argues there’s no equal protection violation because the law is based on the citizenship of the parents rather than the gender. When a child is born to parents of two nationalities, there will inevitably be competing interests. The rationale is that the U.S.-citizen parent needs to have the 10-year residency requirement in order to build a stronger physical connection to the U.S. since the alien parent would introduce a competing national influence.
The remaining section that transfers citizenship to a child born out of wedlock from a U.S.-citizen mother, the government argues, isn’t based on gender either, but rather solely on the legal relationship that an unmarried birth mother has to her child. A father must establish paternity before any legal relationship can exist. I can see how this would be a valid basis for crafting the law in this manner. Nevertheless, the application of the law (whether it was inadvertent is to be determined) does make it harder for U.S.-citizen fathers to transfer citizenship to their children born out of the country.
Even if the intention behind the gender-specific language was based on the fact that unwed mothers have more legal rights to the child than the father, once paternity is established this argument is moot and, at that point, why would the father still have to establish longer residency requirements?
SCOTUS Previously Deadlocked
This isn’t the first time the high court has been faced with this issue. In 2010, the Supreme Court agreed to hear a case on the same issue, but the court deadlocked 4-4, leaving the lower-court decision intact. Although Justice Elena Kagan will participate in the case (she recused herself from the 2010 case), the court is still down a Justice and could potentially end up in another deadlock.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
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