Sessions v Morales-Santana FACTS The applicant, Luis Ramon Morales-Santana was born in the Dominican Republic to a US citizen father and a Dominican Republic citizen mother. 7 At the time of his birth, Mr Morales-Santana’s parents were not married. 8 At the time of the case, §§ 1401 and 1409 of the US Immigration and Nationality Act 9 stated that US citizens living abroad and married to non-citizens could only pass on their US nationality if they had lived for ten years in the US, a common requirement in US immigration law often called a ‘physical presence’ test. 10 The law also imposed a ten year physical presence requirement on unwed, US citizen fathers, five of which had to be after the father's 14th birthday. For unwed US citizen mothers, however, the required period of physical presence in the US was only one year. Mr Morales-Santana's father had not lived in the US for five years after his 14th birthday, so he did not qualify under the law. 11 He had been in the US for longer than one year after his 14th birthday. Had he been a woman, therefore, he would have met the one-year exception for unwed mothers. 12 As a result, Mr MoralesSantana did not qualify as a US citizen under the law. Facing removal from the US, he argued that he was the victim of unconstitutional gender discrimination and filed a motion with the Board of Immigration Appeals 13 to re-open his case based on an Equal Protection claim under the US Constitution.14 The motion was denied, but the US Court of Appeals for the 2nd Circuit (‘2nd Circuit’) reversed the decision, holding that the gender discrimination in the law was unconstitutional and that, therefore, Mr Morales-Santana derived US citizenship from his father. The 2nd Circuit crafted a remedy that extended the one-year physical presence exception to unwed fathers. The government appealed to the US Supreme Court to decide whether (1) §§1401 and 1409 of the United States Code violated the Fifth Amendment’s guarantee of equal protection and (2) if so, ‘[w]hether the court of appeals properly remedied the equal protection violation by extending to unwed citizen fathers of foreign-born children the same rights available to similarly situated unwed citizen mothers’. 15 To settle this area of law, which had previously been raised, but not addressed, by the US Supreme Court decision in Flores-Villar 7 8 9 10 11 12 13 14 15 Morales-Santana (n 1) slip op 1, 4. ibid slip op 5. Immigration and Nationality Act (n 3) §§ 1401, 1409. These sections have since been amended and the physical presence requirement is now five years instead of ten years. Many US immigration and nationality laws require periods during which the applicant must be continuously physically present within the territory of the US or one of its outlying possessions, such as American Samoa. For more information, see US Citizenship and Immigration Services, USCIS Policy Manual (Manual, vol 12, 28 August 2019) pt H ch 3 <https://www.uscis.gov/policy-manual>. Morales-Santana (n 1) slip op 4. ibid slip op 1–3. The US Board of Immigration Appeals is ‘the highest administrative body for interpreting and applying immigration laws’ in the US. See United States Department of Justice, Board of Immigration Appeals (Web Page, 15 October 2018) <https://www.justice.gov/eoir/board-ofimmigration-appeals>. Morales-Santana (n 1) slip op 1–3. Under the Due Process Clause of the Fifth Amendment to the US Constitution, the US government is required to apply the laws equally to everyone and to not draw arbitrary distinctions that are not based on a legitimate state interest. For more information on equal protection under the Fifth Amendment to the US Constitution, see Kenneth L Karst, ‘The Fifth Amendment’s Guarantee of Equal Protection’ (1977) 55(3) North Carolina Law Review 541. Lynch v Morales-Santana, Petition for a Writ of Certiorari (23 May 2016) i. 331