Sessions, Attorney General v Morales-Santana

Parties (including notable third parties)

Petitioner: Jeffrey B. Session III, Attorney General; Respondent: Luis Ramon Morales-Santana

---

Summary of Facts

This case concerns gender equality and the equal protection guarantee of the Fifth Amendment to the United States Constitution. It addresses gender-based distinctions in the transmission of US citizenship at birth, particularly in the context of immigration and removal proceedings. The case also considers whether the risk of statelessness justifies such differential treatment.

The respondent, Luis Ramón Morales‑Santana, was born in the Dominican Republic in 1962 to a US-citizen father and a Dominican Republic mother, who were unmarried. At the time of his birth, the Immigration and Nationality Act (1952) (INA) set different physical-presence requirements for unwed citizen parents to transmit citizenship to a child born abroad. An unwed US-citizen father was required under Sections 1401(a)(7) and 1409(a) to have been physically present in the US for at least ten years, with five of those years to have been after the age of fourteen. In contrast, an unwed US-citizen mother, under Section 1409(c), could transmit citizenship if she had been continuously present in the US for just one year prior to the child’s birth (pages 1, 3-4).

Importantly, Morales-Santana’s father had moved from Puerto Rico to the Dominican Republic twenty days before his nineteenth birthday, thereby failing the five years’ physical presence requirement (page 4). As a result, Morales-Santana did not qualify for US citizenship.

In 2000, the US Government initiated removal proceedings against Morales-Santana based on criminal convictions, classifying him as an ‘alien’ due to his father’s failure to satisfy the statutory residency requirement. This classification was made notwithstanding the fact that Morales-Santana had resided in the United States since the age of 13. He sought to have his removal withheld, but his application was rejected by an immigration judge, who subsequently ordered his deportation to the Dominican Republic.

In 2010, Morales-Santana moved to reopen the proceedings, claiming that the differing requirements for unwed fathers and mothers violated the equal protection principle of the Fifth Amendment’s Due Process Clause (‘Equal Protection Principle’). That motion was denied by the Board of Immigration Appeals. However, the Court of Appeals for the Second Circuit reversed this decision and found in Morales-Santana’s favour, holding that the different physical presence requirements between unwed mothers and fathers violated the Equal Protection Principle. Ultimately, the Court of Appeal extended the favourable one‑year rule that applied to unwed mothers to unwed fathers.

The Government appealed to the Supreme Court, which granted a writ certiorari to resolve the constitutional question and determine the appropriate remedy.

---

Legal Arguments

Legal Arguments by the Petitioner

The Government defended the INA, contending that the gender-based distinction served two ‘important’ objectives:

1. Ensuring a robust connection to the United States: The Government argued the longer residency requirement for unwed fathers was necessary to counteract the ‘competing national influence’ of the non-citizen mother, who would ordinarily become the only ‘legally recognized’ parent at the time of childbirth (pages 17-18).
2. Preventing statelessness: The Government also asserted that the law was designed to reduce the risk of statelessness, which it claimed was historically greater for children of unwed US-citizen mothers born abroad (page 19).

To support the ‘connection to state’ argument, the Government analogised the position of an unwed mother to that of a married couple where both parents are US citizens, and the position of an unwed father to that of a married couple with mixed nationality, again emphasising the need for a stronger connection to the US in the latter scenario. It also cited precedents such as Fiallo v. Bell, Miller v. Albright, and Nguyen v. INS, as well as the statutory paternal‑acknowledgment requirements, to support differential treatment in relation to mothers and fathers (pages 14-16).

Legal Arguments by the Respondent

On standing, the Respondent asserted third-party standing to vindicate his deceased father’s right, which the Court accepted due to the close parent-child relationship and the inability for his deceased father to himself bring a claim.

The Respondent argued that the different physical presence requirements for unwed mothers and fathers violated the Equal Protection Principle. He specifically claimed that gender‑based classifications in Sections 1401 and 1409 warranted heightened scrutiny and that the scheme rested on outdated stereotypes regarding parental roles.

Then Respondent also maintained that the ‘risk of statelessness’ argument was unsupported by legislative history and was instead contradicted by evidence showing that children of unwed US fathers faced a substantial risk of statelessness.

Outcome

The Supreme Court affirmed the Court of Appeals’ decision that the Equal Protection Principle had been violated but it overturned the Court of Appeals’ remedy finding. The majority opinion was written by Justice Ruth Bader Ginsburg and was joined by Chief Justice John Roberts, Justice Anthony Kennedy, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan.

The Supreme Court determined that the different physical presence requirements in the INA were unconstitutional because they conferred preferential treatment on unwed mothers while disadvantaging unwed fathers. As a result, the Court ruled that the more stringent five-year physical presence requirement, previously applicable only to children of unwed US-citizen fathers, must also apply to children of unwed US-citizen mothers. This remedy removed the advantage previously afforded to women and consequently left Morales-Santana without entitlement to US citizenship.

On the Violation of Equal Protection Principle

Since the challenged provisions were federal statutes, the Court applied equal protection principles through the Fifth Amendment's Due Process Clause, which restrains federal action, rather than the Fourteenth Amendment's Equal Protection Clause, which applies to states. The Court clarified that its analysis under both amendments was the same, and it therefore applied the established ‘heightened scrutiny’ standard from its Fourteenth Amendment precedents. Under this standard, one must prove that there is an ‘exceedingly persuasive justification’ supported by government objective for limiting the Equal Protection Right.

The majority held that the Government had provided no ‘exceedingly persuasive justification’, and that the gender-based residency differentials under Sections 1409(a) and 1409(c) therefore violated the Equal Protection Principle (page 9). The judges noted that provisions were born in ‘an era when the lawbooks of [the] Nation were rife with overbroad generalizations about the way men and women are’ (pages 7-8).

The Court concluded that the differential treatment rested on obsolete gender stereotypes which did not substantially relate to the asserted objectives of the INA. Notably, the ‘connection to the United States’ rationale lacked a close means-end fit, as the scheme allowed citizenship transmission by an unwed mother with minimal ties while denying it for an unwed father who narrowly missed the longer requirement, even with subsequent childrearing ties (pages 18-19).

The Government’s justification based on preventing statelessness was held to be unsubstantiated, as neither legislative history nor historical materials demonstrated that Congress enacted the differing requirements to address statelessness. Further, comparative nationality law revealed that historically, numerous foreign legal systems limited a woman’s ability to transmit nationality to non-marital children, weakening the premise that children of unwed US-citizen mothers faced a greater risk of statelessness.

On the Remedy

Regarding the remedy, the Court declined to ‘level up’ by extending the more favourable one-year residency rule to fathers, which would have granted Morales-Santana US citizenship. Instead, guided by legislative intent, the Court chose to ‘level down’ by invalidating the preferential one-year rule for mothers. It held that the general, longer physical-presence requirement of Section 1401(a)(7) must apply. The Court specified that the appropriate interim remedy was to apply the now five-year requirement prospectively to children born to unwed US-citizen mothers, leaving it to Congress to create a permanent, gender-neutral solution.

Ultimately, the case was remanded for further proceedings consistent with the opinion, under which Morales-Santana would not gain citizenship.

Minority Decision and Dissent

Justice Gorsuch took no part in the consideration or decision of the case. Justice Thomas, joined by Justice Alito, concurred in the judgment in part. They agreed with the majority's remedial holding, which was dispositive of the case, but argued it was unnecessary to decide on the constitutional equal protection question. They also expressed scepticism about the Court’s authority to confer citizenship on a basis other than that prescribed by Congress.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	U.S. Constitution	Fifth Amendment, Fourteenth Amendment
Domestic	Immigration and Nationality Act of 1952 (‘INA’) (codified in Title 8, U.S. Code)	ss 1101(a)(38), 1401(a)-(c), 1401(g), 1409(a), 1409(c)
Domestic	Nationality Act of 1940	s 205, 601(g), 605
Domestic	Organic Act of Puerto Rico	ch. 145, § 5, 39 Stat. 953
Domestic	Act of 26 March 1790
Domestic	Act of 29 January 1795	s 3
Domestic	Act of 14 April 1802	s 4
Domestic	Act of 10 February 1855	ch. 71, ss 2, 10 Stat. 604
Domestic	Act of 3 March 1903	ch. 1012, ss 37, 32 Stat. 1221
Domestic	Act of 2 March 1907	ch. 2534, ss 3, 34 Stat. 1228
Domestic	Act of 24 May 1934	ch. 344, ss 1, 48 Stat. 797
Domestic	Immigration Reform and Control Act of 1986	§ 315(a), 100 Stat. 3439

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

John Vlahoplus, ‘Sessions v. Morales-Santana: Beyond the Mean Remedy’ (2018) 17 Connecticut Public Interest Law Journal 311

• The article argues that Morales-Santana re-orients equal protection analysis from the child to the citizen-parent and may expand scrutiny of gender lines in nationality laws, overruling previous authorities.
• It argues that the court’s ‘levelling down’ remedy is unsound because the longer physical-presence rule dilutes citizenship and reflects past biases such as race, ethnicity, gender, marital status and marital choice. It instead proposes severing the provisions or substituting the ‘nominal residency’ rule instead (pages 316-326).
• The article speaks of the case as the ‘triumph’ of Justice Marshall’s Fiallo v. Bell dissent and supports the ‘principled’ nature of Justice Ginsburg’s opinion that forces courts to ‘confront the discrimination that pervades American immigration and naturalization law’ (page 336).

John Vlahoplus, ‘Sessions v. Morales-Santana, Six Years On’ (2023) 18 Charleston Law Review 1

• As a follow-up to the previous commentary, the article revisits the ‘landmark victory’ after six years, and comments on subsequent lower court decisions, before introducing further questions.
• The article argues that the decision has influenced the recognition of non-traditional families and informed gender-equality review but has left unresolved whether statutory citizenship at birth abroad counts as ‘naturalisation’ and how equal protection interacts with Congress’s naturalisation powers.
• The article discusses subsequent cases, which show that courts can still ‘level up’ and apply intermediate scrutiny in derivative-citizenship disputes (despite the persistence of ambiguities). However, it notes that the Morales-Santana decision applies to very few citizenship claims.

Kristin Collins, ‘Equality, Sovereignty, and the Family in Morales-Santana’ (2017) 131 Harvard Law Review 170

• The article refers to the case as the first time that the Court had invalidated a gender-based citizenship rule, and in doing so developed a ‘modernizing understanding of gender quality’ and confirmed that the same scepticism would be applied to ‘all gender-based classifications’.
• The article emphasises that the Court rejected the plenary-power framing and instead increased scrutiny and thereby constrained the longstanding assumption that naturalisation rules are ‘largely immune from judicial control’ when incorporating classifications.
• The article considers the Court’s choice to ‘level down’ the ambiguity and raises the possibility that competing readings could leave Morales-Santana without relief while prospectively worsening outcomes for some unmarried mothers and their children. In doing so, it demonstrates that the remedy will require clarification.

Dara Purvis, ‘The Constitutionalization of Fatherhood’ (2019) 69 Case Westerns Reserve Law Review 541

• The article argues that courts have carried over family-law assumptions into federal citizenship law, resting on outdated stereotypes and racialized histories.
• The author argues that the Morales-Santana decision amounts to a rejection of gendered parental stereotype which, together with the decision in another case (Obergefell v Hodges) provides argument for ‘constitutionalising fatherhood’ based on the Equal Protection Clause.