The Yale Law Journal

Article Cited in Brief for Lynch v. Morales-Santana

Christine Kwon
17 Aug 2016

On June 28, the Supreme Court granted certiorari in Lynch v. Morales-Santana (No. 15-1191). The federal government’s appeal asks the high court to defend the constitutionality of the gender-based difference for transmitting U.S. citizenship to a child born abroad to a U.S. citizen mother or father. Under the Immigration and Nationality Act of 1952, a child born abroad to an unwed U.S. citizen mother is a U.S. citizen at birth so long as the mother was present in U.S. territory for a continuous period of at least one year before the child’s birth. 8 U.S.C. § 1409(c). A child born abroad to an unwed U.S. citizen father, however, only has U.S. citizenship at birth if the father was present in U.S. territory for at least ten total years, with at least five of those years after the age of fourteen. 8 U.S.C. § 1409(c).

 In the decision below, the Second Circuit held that Congress’s relatively more stringent citizenship requirements for foreign-born children born to unmarried U.S. citizen fathers violates the Fifth Amendment’s guarantee of equal protection. Morales-Santana v. Lynch, 804 F.3d 520, 523-24 (2d Cir. 2015). Judge Lohier, writing for a unanimous panel, cited repeatedly to Kristin A. Collins’s Yale Law Journal Article to reject the federal government’s argument that Congress imposed different gender-based physical presence requirements for derivative citizenship to avoid statelessness among children. Id. at 531-33. (For more coverage, see our news update from July 2015.)

 Morales-Santana’s response brief in opposition to the federal government’s petition for writ of certiorari cites to Professor Collins’s Article, as well. Morales-Santana argues that the Second Circuit’s departure from a Ninth Circuit opinion on Congress’s purposes for enacting the discriminatory derivative citizenship scheme in 1952 stems from “a significant disparity in the extent and quality of information considered by the two courts.” Brief for Respondent in Opposition at 8, Lynch v. Morales-Santana, No. 15-1191 (May 23, 2016). Unlike the Ninth Circuit opinion, Morales-Santana asserts, the Second Circuit decision “rests on a thorough review and analysis of legislative and executive records” and “scholarship that exhaustively traces the history and origin of the statutes, rules, and agency practices” on the citizenship status of foreign-born children, including Professor Collins’s Volume 123 piece. Id. at 9. Defending the merits of the Second Circuit decision, Morales-Santana also cites the Article for the proposition that Congress enacted the gender-discriminatory citizenship scheme based on “archaic and overbroad gender stereotypes.” Id. at 19-21.