Immigration Law Associates, PC

Lynch v. Morales-Santana, 2016 U.S. LEXIS 4283 (2016)- Decided June 28, 2016

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Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit granted.

Relevant Law:

Under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1409(c), a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non-citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. 8 U.S.C. § 1409(a).

Facts of the Case:

Morales-Santana’s father, Jose Dolores Morales, was born in Puerto Rico on March 19, 1900 and acquired United States citizenship in 1917 pursuant to the Jones Act. 8 U.S.C. § 1402 (1917)). He was physically present in Puerto Rico until February 27, 1919, 20 days before his nineteenth birthday, when he left Puerto Rico to work in the Dominican Republic. This means that he did not reside in an American state or territory for the 5 required years after the age of fourteen.

In 1962 Morales-Santana was born in the Dominican Republic to his father and his Dominican mother. Morales-Santana was legitimated by his parents’ marriage in 1970 and admitted to the United States as a lawful permanent resident in 1975. 8 U.S.C. § 1409(a).

In 2000 Morales-Santana was placed in removal proceedings after having been convicted of various felonies. He applied for withholding of removal on the basis of derivative citizenship obtained through his father. An immigration judge denied the application.

Decision of the Board of Immigration Appeals (BIA)

 In 2010 Morales-Santana filed a motion to reopen based on a violation of equal protection and newly obtained evidence relating to his father. The BIA rejected Morales-Santana’s arguments for derivative citizenship and denied his motion to reopen.

Decision of the Second Circuit Court of Appeals

Morales-Santana then appealed the BIA decision with the Second Circuit of Appeals The Second Circuit reversed and remanded the BIA decision, holding that the gender-based difference in the Immigration and Nationality Act of 1952, 8 U.S.C. § 1409(a) and (c), which transmits citizenship to a child of an unwed mothers but has more stringent requirements applicable to unwed fathers, violated the Fifth Amendment’s guarantee of equal protection. The court held that the proper remedy was to extend to unwed fathers the benefits unwed mothers receive under § 1409(c). The court reasoned that because Congress when drafting immigration law had the Constitution (and therefore, the 5th Amendment) in mind, Morales-Santana was a citizen as of his birth.


  • Given that the principal of constitutional avoidance was applied in the Second Circuit decision and that judges hold this principal to be very important, it is very likely that the Supreme Court could rule in favor of the Second Circuit decision.







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