Sessions v. Morales-Santana

• Decision Date: 12 June 2017
• Docket Number: No. 15–1191.,15–1191.
• Citation: 198 L.Ed.2d 150,137 S.Ct. 1678
• Parties: Jefferson B. SESSIONS, III, Attorney General, Petitioner v. Luis Ramón MORALES–SANTANA.
• Court: U.S. Supreme Court

137 S.Ct. 1678

198 L.Ed.2d 150

Jefferson B. SESSIONS, III, Attorney General, Petitioner

v.Luis Ramón MORALES–SANTANA.

No. 15–1191.

Supreme Court of the United States

Argued Nov. 9, 2016.

Decided June 12, 2017.

Edwin S. Kneedler, Washington, DC, for Petitioner.

Stephen A. Broome, Los Angeles, CA, for Respondent.

Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner.

Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Donald E. Keener, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Kathleen M. Sullivan, Todd Anten, Justin T. Reinheimer, Ellyde R. Thompson, Quinn Emanuel Urquhart, & Sullivan, New York, NY, Stephen A. Broome, Quinn Emanuel Urquhart, & Sullivan, LLP, Los Angeles, CA, for Respondent.

Justice GINSBURG delivered the opinion of the Court.

This case concerns a gender-based differential in the law governing acquisition of U.S. citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a citizen of another nation. The main rule appears in 8 U.S.C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years' physical presence prior to the child's birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child's birth.

The respondent in this case, Luis Ramón Morales–Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)'s physical-presence requirement. Opposing removal to the Dominican Republic, Morales–Santana asserts that the equal protection principle implicit in the Fifth Amendment¹ entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons "the equal protection of the laws." Nevertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.

I

A

We first describe in greater detail the regime Congress constructed. The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), § 301, 66 Stat. 235–236. Section 1401 sets forth the INA's rules for determining who "shall be nationals and citizens of the United States at birth" by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth. § 1401(a) (1958 ed.) ; § 1401 (2012 ed.). The primacy of § 1401 in the statutory scheme is evident. Comprehensive in coverage, § 1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here,² § 1401(a)(7) provided for the U.S. citizenship of

"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 ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."

Congress has since reduced the duration requirement to five years, two after age 14. § 1401(g) (2012 ed.).³

Section 1409 pertains specifically to children with unmarried parents. Its first subsection, § 1409(a), incorporates by reference the physical-presence requirements of § 1401, thereby allowing an acknowledged unwed citizen parent to transmit U.S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c) —a provision applicable only to unwed U.S.-citizen mothers—states an exception to the physical-presence requirements of §§ 1401 and 1409(a). Under § 1409(c)'s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad.

B

Respondent Luis Ramón Morales–Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U.S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales–Santana in his household.

José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55–56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U.S. ––––, –––– – ––––, 136 S.Ct. 1863, 1868–1869, 195 L.Ed.2d 179 (2016) ; 8 U.S.C. § 1101(a)(38) (1958 ed.) ("The term United States ... means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U.S.] Virgin Islands." (internal quotation marks omitted)); § 1101(a)(38) (2012 ed.) (similar), and José became a U.S. citizen under the Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 953 (a predecessor to 8 U.S.C. § 1402 ). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)'s requirement of five years' physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U.S. company in the then-U.S.-occupied Dominican Republic. Ibid.⁴

By 1959, José attested in a June 21, 1971 affidavit presented to the U.S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales–Santana. Id., at 166–167. While the record before us reveals little about Morales–Santana's childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales–Santana's birth certificate as his father. Id., at 163–164, 167. José also related in the same affidavit that he was then saving money "for the susten[ance] of [his] family" in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales–Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369.⁵

C

In 2000, the Government placed Morales–Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales–Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years' physical presence after age 14. See supra, at 1686 – 1687, and n. 3. An immigration judge rejected Morales–Santana's claim to citizenship derived from the U.S. citizenship of his father, and ordered Morales–Santana's removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a–49a. In 2010, Morales–Santana 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. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a–44a.

The United States Court of Appeals for the Second Circuit reversed the BIA's decision. 804 F.3d 520, 524 (2015). 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. Id., at 527–535. To cure the constitutional flaw, the court further held that Morales–Santana derived citizenship through his father, just as he would were his mother the U.S. citizen. Id., at 535–538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores–Villar, 536 F.3d 990 (2008), see 804 F.3d, at 530, 535, n. 17. We granted certiorari in Flores–Villar, but ultimately affirmed by an equally divided Court. Flores–Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). Taking up Morales–Santana's request for review, 579 U.S. –––– (2016), we consider the matter anew.

II

Because § 1409 treats sons and daughters alike, Morales–Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales–Santana's birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. Although the...