Lynch v. Morales-Santana

LII note: The U.S. Supreme Court has now decided Lynch v. Morales-Santana.


  1. Did Congress violate the Fifth Amendment’s guarantee of equal protection when it passed a law that made it more difficult for out-of-wedlock, foreign-born children with United States-citizen fathers to inherit United States citizenship than for those with United States-citizen mothers?
  2. Is a federal appellate court allowed to grant citizenship when it lacks express authority to do so?
Oral argument: 
November 9, 2016

When a child with one United States-citizen parent is born abroad and out of wedlock, that child may or may not inherit United States citizenship. One of the factors that determines the child’s citizenship is whether the United States-citizen parent is the child’s mother or father. In 1958, Congress passed a law that placed different physical-presence requirements on the father than on the mother, whereby the father must have lived in the United States for at least ten years before the child’s birth, while the mother must have lived in the United States for only one continuous year. Luis Ramon Morales-Santana argues that this distinction unjustifiably discriminates on the basis of gender and therefore violates the Fifth Amendment’s Equal Protection Clause. Attorney General Loretta E. Lynch argues that this distinction is not actually based on gender, but on the legal realities inherent in out-of-wedlock births, and is constitutional. The outcome of this case will affect the legal criteria bearing upon a foreign-born child’s ability to inherit United States citizenship.

Questions as Framed for the Court by the Parties 

In order for a United States citizen who has a child abroad with a non-U.S. citizen to transmit his or her citizenship to the foreign-born child, the U.S.-citizen parent must have been physically present in the United States for a particular period of time prior to the child's birth.

The questions presented are:

  1. Whether Congress's decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment's guarantee of equal protection.
  2. Whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.


In 1962, Luis Ramon Morales-Santana was born in the Dominican Republic to unmarried parents. At the time of Morales-Santana’s birth, his mother was a citizen of the Dominican Republic, and his father was a citizen of the United States. Morales-Santana’s father was born in Puerto Rico, making him a United States citizen, and had lived there for over eighteen years. However, twenty days before Morales-Santana’s father’s nineteenth birthday, he left Puerto Rico for the Dominican Republic.When Morales-Santana was eight years old, his parents married each other, “legitimat[ing]” him.About five years later, he and his parents moved to the United States, at which point Morales-Santana was admitted into the country as a lawful permanent resident.Morales-Santana has lived in the United States as a permanent resident for more than forty years.

In 1995, Morales-Santana was convicted of several felonies. In 2000, Morales-Santana was placed in removal proceedings where, because of his removable status as a non-citizen permanent resident, the court ordered him removed from the United States. Morales-Santana then filed a motion with the court claiming that he was born a United States citizen through his father’s citizenship. The Board of Immigration Appeals denied his motion on the grounds that his father had not satisfied the physical-presence requirement necessary to pass on his citizenship to his child. That requirement dictates that the United States-citizen father of a child born out of wedlock to a foreign mother must have lived in the United States for at least ten years, five of which had to be after the age of fourteen. Morales-Santana’s father was twenty days short of that mark when he left Puerto Rico and was therefore unable to pass on his United States citizenship. Morales-Santana then appealed to the United States Court of Appeals for the Second Circuit.

The Second Circuit rejected Morales-Santana’s argument that he was born a United States citizen, as his father had not lived in the United States for the requisite period of time prescribed by the law. Rather, even though Morales-Santana’s father was present in the United States for over ten years before Morales-Santana’s birth, his father was not present in the United States for at least five years after his fourteenth birthday. Therefore, Morales-Santana was not born a United States citizen according to the law. However, the court did hold that Congress’s physical-presence requirement for an unwed United States-citizen father of a foreign-born child unconstitutionally discriminated on the basis of gender. The court reasoned that because the physical-presence requirement for an unwed United States-citizen mother of a foreign-born child is only one continuous year, the law discriminated against men by making it more burdensome for them to pass on their citizenship than it does for women. The government appealed the discrimination finding.



Attorney General Loretta E. Lynch argues that 8 U.S.C. 1401 and 1409 do not violate the Fifth Amendment because enacting a lengthier physical-presence requirement on unwed fathers ensures a strong connection between the foreign-born child and the United States. Attorney General Lynch highlights the legislative history of various naturalization acts for support that Congress intended to naturalize well-meaning applicants whose connection to the United States exceeded a “mere blood relationship.” In the case of competing citizenships, Attorney General Lynch argues that Congress reasoned that a stronger physical connection to the United States would ensure deeper cultural and personal links and loyalty to the United States to compensate for any opposing affiliation with another nation.

Furthermore, Attorney General Lynch argues that legislative history consistently indicates different standards when a child is born to parents with opposing allegiances to other countries. Attorney General Lynch reasons that mothers around the world are commonly regarded as a “legally recognized parent” upon the birth of the child, whereas fathers only establish a legal relationship to the child upon marriage to the mother or upon taking other legal steps, like legitimization. Therefore, Attorney General Lynch emphasizes that mothers and fathers are not equally situated because the citizenship of the child is created by the child’s legal relationship to the parent, not by the parent’s gender. Furthermore, Attorney General Lynch maintains that the Constitution’s Equal Protection clause does not require equal treatment among men and women when they are not equally situated.

Finally, Attorney General Lynch argues that Congress attempted to protect foreign-born children against statelessness by specifying that a foreign-born child born out of wedlock would assume his or her mother’s citizenship at birth. Attorney General Lynch reasons that the issue of statelessness stirred Congress to revise statutes that require a child to reach age twenty-one or be legitimized by his or her father before his or her nationality could be established. Furthermore, Attorney General Lynch points out that statelessness disproportionately impacts the children of unmarried female citizens rather than unmarried male citizens.

Morales-Santana counters that 8 U.S.C. 1401 and 1409 do not serve Congress’s alleged goal of ensuring that foreign-born children have a physical connection to the United States but instead promote gender stereotypes. Specifically, Morales-Santana contends that the stereotypes reflect misconceived notions about the roles and abilities of women as the “natural guardians” and mothers as the “presumed caretakers,” while a man’s parental commitment does not include the child of an out-of-wedlock relationship. Morales-Santana cites to Stanley v. Illinois, 405 U.S. 645, 651 (1972), and Caban v. Mohammed, 441 U.S. 380, 394 (1979), as examples of when the Court rejected the opportunity to stereotype fathers as inapt and careless parents, particularly when they exhibited a parental interest in their children.

Morales-Santana argues that the physical-presence requirements of 8 U.S.C. 1401 and 1409 should depend on the parent’s biological relationship to the child, not upon the parent’s actions before the child was born. Morales-Santana further rejects Attorney General Lynch’s reliance on Nguyen v. INS, 533 U.S. 53 (2001), which required that an unwed father recognize paternity as a means of establishing a biological connection before citizenship may be bestowed upon his foreign-born child. Morales-Santana argues that, unlike the requirement in Nguyen, the physical-presence requirement does not account for any biological differences between a mother and father.

Lastly, Morales-Santana maintains that 8 U.S.C. 1401 and 1409 actually increase the risk for statelessness by preventing unmarried United States-citizen fathers from transmitting their citizenship to their foreign-born children, generating a vulnerability to statelessness if unwed alien mothers are also unable to bestow their nationality upon their children. Morales-Santana contends that the statutes are over-inclusive because the one-year physical-presence requirement does not guarantee that a mother will have immersed herself in United States culture and values amply to hand down to her child.


Attorney General Lynch argues that the Fourteenth Amendment establishes two sources for citizenship: birth and naturalization. Attorney General Lynch points out that since Morales-Santana was born in the Dominican Republic, Morales-Santana is only entitled to citizenship via naturalization. Furthermore, Attorney General Lynch claims that Article I of the Constitution grants Congress the authority to establish a uniform Rule of Naturalization.

Morales-Santana counters that the language of 8 U.S.C. 1401 and 1409 conferred citizenship upon him immediately upon birth. Hence, Morales-Santana argues that the Court of Appeals did not err in granting him citizenship because it was merely verifying Morales-Santana’s pre-existing citizenship as opposed to granting him new rights. While Morales-Santana concedes that the naturalization power rests with Congress, he maintains that it is the judiciary’s role to ascertain that Congress has implemented a legitimate means of exercising its constitutional plenary authority over aliens. Furthermore, Morales-Santana maintains that the courts have historically heard cases involving claims to derivative citizenship.


Attorney General Lynch argues that the Court should apply a deferential rational basis review. Attorney General Lynch posits three reasons why the courts should be highly differential to Congress’s judgment. First, Attorney General Lynch suggests that determining the classes eligible for citizenship is a legislative concern. Attorney General Lynch also contends that the power to bar aliens from the United States is exempt from the judiciary branch. Finally, Attorney General Lynch asserts that immigration remains a foreign relations issue under the control of the political branches of government. Furthermore, Attorney General Lynch points to Fiallo v. Bell, 430 U.S. 787 (1977), which applied rational basis review when an immigration statute was challenged for granting preferential status due to the applicant’s relationship to a United States citizen.

Conversely, Morales-Santana argues that the Court should apply heightened scrutiny review because the gender distinction in 8 U.S.C. 1401 and 1409 is a facially discriminatory classification. Morales-Santana contends that Fiallo should not apply because United States citizens are the class being discriminated against with a pre-existing citizenship at birth. Still, even if heightened scrutiny is not applied when reviewing the constitutionality of 8 U.S.C. 1401 and 1409, Morales-Santana contends that both statutory provisions would still fail rational-basis review because there is no logical relationship to a valid state interest.



Attorney General Lynch argues that Congress has a strong interest in being cautious about extending citizenship to foreign-born individuals. Attorney General Lynch suggests that of particular relevance is the worry that “a foreign-born child is presumptively subject to competing claims of national allegiance.” In other words, Attorney General Lynch explains, Congress is hesitant to extend citizenship to a foreign-born child when that child is at risk of being loyal to a country other than the United States. This, Attorney General Lynch claims, is the impetus behind Congress’s desire to ensure a sufficiently strong connection between the foreign-born child and the United States. Attorney General Lynch further contends that the differing treatment of out-of-wedlock children based on which parent is the United States citizen is a legitimate way of carrying out this goal. Attorney General Lynch bases this contention on the historical understanding that out-of-wedlock children were presumptively born with the mother as the only legal parent and with the father needing to affirmatively establish his connection to the child to become his or her legal parent. At the time that Congress passed the relevant law, Attorney General Lynch argues, most countries around the world held this view of children born out of wedlock.

Morales-Santana counters that there is no evidence that Congress had the intent of ensuring a sufficient connection to the United States when it enacted the physical-presence requirements. The American Civil Liberties Union (“ACLU”) further argues that the government’s justification for treating mothers and fathers differently rests on the assumption that, in the case of the non-citizen father, the father will not later legitimate the child or play a significant role in the child’s life that might create the competing “national influence” that Congress fears. However, the ACLU contends that this assumption is based on gender stereotypes and cannot be the basis for a discriminatory law.


Attorney General Lynch further contends that Congress’s differing treatment regarding physical presence prevents statelessness for children born abroad to one United States-citizen parent. Attorney General Lynch supports this claim by pointing out that unlike the United States, most other nations grant citizenship based on bloodline, and that the mother is usually the only presumed legal parent of an out-of-wedlock child. Therefore, Attorney General Lynch argues, a child born out of wedlock to a United States-citizen mother is at a disadvantage because the child would not automatically get his or her only presumed parent’s citizenship through bloodline. So, Attorney General Lynch concludes, the more burdensome the physical-presence requirement on the mother, the greater the probability that her child will be stateless.

The ACLU, however, contends that there is no evidence that Congress intended this physical-requirement scheme to prevent statelessness. The ACLU further argues that, even if Congress did originally intend to lessen the probability of statelessness, the gender standards upon which the relevant law is based are outdated. Therefore, the ACLU asserts, the government’s interest in preventing statelessness cannot justify this type of gender discrimination. Finally, the ACLU points out that it is Congress’s physical-presence requirements that increase the likelihood of statelessness in the first place. For without those requirements, the ACLU suggests, a child born out of wedlock to only one United States-citizen parent would inherit this citizenship regardless of how long that parent lived in the United States.

Edited by 


Additional Resources