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Victory: October 2015: Groundbreaking Pro Bono Equal Protection Victory

October 2015

The firm won a groundbreaking Second Circuit decision holding that a portion of the Immigration and Nationality Act is unconstitutional under the Equal Protection Clause of the Fifth Amendment.

In 2012, Quinn Emanuel was appointed by the Second Circuit to act as pro bono appellate counsel to Luis Morales-Santana in his petition for review of a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen removal proceedings to evaluate his claim that, although he was born in the Dominican Republic to a Dominican mother and Puerto Rican father who were not married at the time, he nevertheless obtained American citizenship at birth derivatively through his father, who obtained American citizenship in 1917 pursuant to the Jones Act of Puerto Rico (codified at 8 U.S.C. s. 1402 (1917)).

In the decision below, in which Mr. Morales represented himself pro se, the BIA denied Mr. Morales’s citizenship claim because, under the statutory scheme in effect at the time Mr. Morales was born, a child born abroad to an unwed U.S. citizen father and non-citizen mother—like Mr. Morales— has citizenship at birth only if the father was present in the United States or outlying possession prior to the child’s birth for a period of ten years, with at least five of those years occurring after the father turned fourteen. Mr. Morales’s father departed the U.S. outlying possession of Puerto Rico 20 days before his nineteenth birthday, and the BIA held that he therefore fell 20 days short of satisfying the statutory requirements. Under the same statutory scheme, however, a child born outside of the United States to an unwed U.S. citizen mother and non-citizen father derives American 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 only one year at some point prior to the child’s birth. Thus, Mr. Morales’s father could satisfy the one year requirement applicable to mothers, but not the agecalibrated 10 year requirement applicable to fathers. (This discriminatory scheme exists in the current version of the statute in a slightly less onerous form.)

The firm challenged the statutory scheme as unconstitutional under the Equal Protection Clause of the Fifth Amendment, and the Second Circuit agreed. The Court held, inter alia, that (1) the statute is facially discriminatory; (2) intermediate scrutiny applies; (3) the Government failed to demonstrate that the discriminatory scheme is substantially related to an important governmental objective; and (4) the appropriate remedy is to extend to unwed citizen fathers the more favorable treatment the statute affords to unwed citizen mothers.

In so holding, the Second Circuit split with the Ninth Circuit on this issue of national importance— an issue that also split the Supreme Court 4-4 (with Justice Kagan recused) when it was presented on appeal from the Ninth Circuit—and dramatically altered the statutory scheme at issue.

The decision has broad implications not only as a matter of constitutional and statutory law, but also for numerous individuals (here in the United States and abroad) who are now deemed to be American citizens as of their birth.

As a result of the decision, the Court declared that Mr. Morales—who has been in federal detention subject to a deportation order for over two years pending the outcome of his appeal—derived American citizenship at birth from his father, and therefore he cannot be deported. Mr. Morales was released from federal detention the day after the Second Circuit issued its decision. He is now an American citizen as a matter of law.