Women and Justice: Keywords

Domestic Case Law

Morales-Santana v. Lynch United Court of Appeals (2015)

Gender discrimination

Morales-Santana sought review of a decision made by the Board of Immigration Appeals denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Morales-Santana’s derivative citizenship claim was based on the Immigration and Nationality Act of 1952 (18 U.S.C. §1409). The 1952 Act differentiates how fathers and mothers can confer citizenship to their children. An unwed citizen mother confers citizenship on her child as long as she had been resident in the United States for a year continuously before the child’s birth. An unwed citizen father, however, cannot transfer citizenship to his child born abroad if he was not present in the United States before the child’s birth for a total of ten years. Additionally, five of the father’s ten years in the United States must be after his fourteenth birthday. Therefore, it was impossible for a father under the age of eighteen to confer citizenship to a child born abroad of a non-citizen mother. In this case, Morales-Santana’s father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed fathers. The Second Circuit Court of Appeals found this disparate treatment a violation of the Fifth Amendment’s guarantee of equal protection and reversed the Board of Immigration Appeals decision.

In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.