Thursday, July 9, 2015

Second Circuit Invalidates Gender Discrimination in Citizenship Law


Ruthann Robson on the Constitutional Law Professors blog analyzes an important recent court of appeals decision invalidating a provision of the immigration laws that relies on gender stereotypes in bestowing derivative citizenship. In its opinion in Morales-Santana v. Lynch, the U.S. Court of Appeals for the Second Circuit held that the differential requirements regarding U.S. presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection. It creates a conflict in the circuits and sets up another possible trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split.

The Ninth Circuit has reached a contrary conclusion.  Stay tuned to see whether this case ends up in the Supreme Court.  Could it be the case in which the Court addresses the continuing vitality of the plenary power doctrine, which historically has immunized the substantive provisions of the immigration and nationality laws from constitutional scrutiny?


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The panel played good offense on plenary power. They said they were deciding a question of citizenship at birth, not special treatment of an alien. Therefore Fiallo (or Mandel) was not a control. Moreover, they said they weren't granting citizenship but merely severing a section of the INA so that they could determine if citizenship was transmitted at birth with equal protection. In addition, they concluded the INA was designed not to constrict citizenship but to expand it.

I love how they embraced the dissents in Miller and Nguyen too. Solid.

Posted by: Timothy Dugdale | Jul 9, 2015 9:30:53 AM

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