Argued April 1, 2013
Amended: October 30, 2015.
Final Submission: November 14, 2014. Petitioner Luis Ramon Morales-Santana seeks review of a Board of Immigration Appeals (" BIA" ) decision denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Under the statute in effect when Morales-Santana was born, Immigration and Nationality Act of 1952, § § 301(a)(7), 309(a), (c) (codified at 8 U.S.C. § § 1401(a)(7), 1409(a), (c) (1952)), Morales-Santana's father satisfied the physical presence requirements for transmitting citizenship applicable to unwed citizen mothers but not the more stringent requirements applicable to unwed citizen fathers. On appeal, Morales-Santana argues principally that this statutory scheme violates the Fifth Amendment's guarantee of equal protection, and that the proper remedy is to extend to unwed fathers the benefits unwed mothers receive under the statute. We agree and hold that Morales-Santana derived citizenship at birth through his father. We accordingly REVERSE the BIA's decision and REMAND for further proceedings consistent with this opinion.
STEPHEN A. BROOME (Ellyde Roko and Jacob Waldman, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioner.
IMRAN R. ZAIDI, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC (Stuart Delery, Acting Assistant Attorney General, Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, Civil Division, Kathryn M. McKinney, Attorney, Office of Immigration Litigation, Civil Division, on the brief), for Respondent.
Before: LOHIER, CARNEY, Circuit Judges, and RAKOFF, District Judge.[**]
LOHIER, Circuit Judge.
Luis Ramon Morales-Santana asks us to review a March 3, 2011 decision of the Board of Immigration Appeals (" BIA" ) denying his motion to citizenship. Under the statute in effect when Morales-Santana was born -- the Immigration and Nationality Act of 1952 (the " 1952 Act" ) -- a child born abroad to an unwed citizen mother and non-citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child's birth. See 1952 Act, § 309(c), 66 Stat. 163, 238-39 (codified at 8 U.S.C. § 1409(c) (1952)). By contrast, a child born abroad to an unwed citizen father and non-citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child's birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. See id. § 309(a) (codified at 8 U.S.C. § 1409(a) (1952)); see also id. § 301(a)(7) (codified at 8 U.S.C. § 1401(a)(7) (1952)). Morales-Santana's father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed fathers. On appeal, Morales-Santana argues principally that this gender-
based difference violates the Fifth Amendment's guarantee of equal protection and that the proper remedy is to extend to unwed fathers the benefits unwed mothers receive under § 1409(c). We agree and hold that Morales-Santana derived citizenship at birth through his father. We accordingly REVERSE the BIA's decision and REMAND for further proceedings consistent with this opinion.
The following undisputed facts are drawn from the record on appeal. Morales-Santana's father, Jose Dolores Morales, was born in Puerto Rico on March 19, 1900 and acquired United States citizenship in 1917 pursuant to the Jones Act. See Jones Act of Puerto Rico, ch. 145, 39 Stat. 951 (codified at 8 U.S.C. § 1402 (1917)). He was physically present in Puerto Rico until February 27, 1919, 20 days before his nineteenth birthday, when he left Puerto Rico to work in the Dominican Republic for the South Porto Rico Sugar Company.
In 1962 Morales-Santana was born in the Dominican Republic to his father and his Dominican mother. Morales-Santana was what is statutorily described as " legitimat[ed]" by his father upon his parents' marriage in 1970 and admitted to the United States as a lawful permanent resident in 1975. 8 U.S.C. § 1409(a). Morales-Santana's father died in 1976.
II. Statutory Framework
Unlike citizenship by naturalization, derivative citizenship exists as of a child's birth or not at all. See 8 U.S.C. § 1409(a), (c); cf. id. § 1101(a)(23). The law in effect at the time of birth governs whether a child obtained derivative citizenship as of his or her birth. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). Accordingly, the 1952 Act provides the statutory framework applicable to Morales-Santana's nationality claim.
As noted, the 1952 Act limits the ability of an unwed citizen father to confer citizenship on his child born abroad -- where the child's mother is not a citizen at the time of the child's birth -- more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same. Compare 8 U.S.C. § 1401(a)(7), with id. § 1409(c). We note that this difference in treatment of unwed citizen fathers and unwed citizen mothers, though diminished, persists in the current statute. Compare 8 U.S.C. § 1409(a) (2012) (applying to unwed citizen fathers § 1401(g), which requires five years of physical presence, two of which must be after age fourteen), with id. § 1409(c) (maintaining the 1952 Act's conferral of derivative citizenship based on an unwed mother's continuous physical presence for one year at any time prior to the child's birth).
III. Procedural History
In 2000 Morales-Santana was placed in removal proceedings after having been convicted of various felonies. He applied for withholding of removal on the basis of derivative citizenship obtained through his father. An immigration judge denied the application. In 2010 Morales-Santana
filed a motion to reopen based on a violation of equal protection and newly obtained evidence relating to his father. The BIA rejected Morales-Santana's arguments for derivative citizenship and denied his motion to reopen.
Morales-Santana makes four arguments for derivative citizenship: (1) that his father's physical absence from the United States during the 20 days directly prior to his father's nineteenth birthday constituted a de minimis " gap" in physical presence, and that such gaps should not count against a finding of physical presence for purposes of § 1401(a)(7); (2) that the South Porto Rico Sugar Company, which employed his father after his father moved to the Dominican Republic, was a multi-national United States-owned company and therefore effectively part of the United States government or an international organization as defined in 22 U.S.C. § 288, see 1966 Act to Amend the Immigration and Nationality Act (the " 1966 Act" ), 80 Stat. 1322 (codified at 8 U.S.C. § 1401(a)(7) (1966)) (counting periods of employment for certain organizations toward the statute's physical presence requirements); (3) that at the time his father moved to the Dominican Republic it was an " outlying possession" of the United States; and (4) as noted, that the different physical presence requirements applicable to unwed fathers and unwed mothers under the 1952 Act violate equal protection.
Consistent with our obligation to avoid constitutional questions if possible, we first address Morales-Santana's three statutory arguments for derivative citizenship. See Escambia Cnty., Fla. v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) (per curiam).
As to both his statutory and constitutional arguments, we review de novo the question of Morales-Santana's derivative citizenship. See Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007). " If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about claim." 8 U.S.C. § 1252(b)(5)(A). No material facts are disputed.
I. Statutory Arguments
Morales-Santana contends that his father's absence from the United States during the 20 days prior to his father's nineteenth birthday constitutes a de minimis " gap" in his father's physical presence and that such gaps should not be held against someone who claims to have satisfied the 1952 Act's physical presence requirement. In support, Morales-Santana points to continuous physical presence requirements under the immigration laws that explicitly excuse de minimis absences. See, e.g., id. § 1229b(b)(1)(A), (d)(2) (2012) (absences of 90 continuous days or fewer do not break " continuity" of physical presence for purposes of cancellation of removal for a lawful permanent resident.); id. § § 1255(l)(3), 1255a(a)(3)(B). By its plain terms, § 1401(a)(7) had no similar exception. In any event, because Morales-Santana's father left the United States and its outlying possessions 20 days prior to his nineteenth birthday and never returned, there was no " gap" in his father's physical presence that bridged two periods of physical presence. So even if we recognized an exception to the physical presence requirement in § 1401 for de minimis " gaps," we would reject Morales-Santana's claim on this basis.
Relying on the 1966 Act, Morales-Santana next argues that his ...