Held by Circuit Judges Raymond Lohier (Obama appointee, pictured at right) and Cormac Carney (Dubya appointee) and District Judge Jed Rakoff (Clinton appointee) in Morales-Santana v. Lynch, No. 11-1252-ag (2nd Cir., 2015). Ironically, given the effects this may have in Canada, Lohier himself was born in Montreal. In the opinion, released on Wednesday, Lohier wrote:

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.

It seems this ruling (if upheld on appeal) could retroactively extend U.S. citizenship to a large number of people who previously believed — and may even have confirmed with lawyers & consular officers — that they were non-citizens and would remain so for life unless they took the voluntary steps of immigrating to the U.S. and naturalising there. This includes people who do not live in the United States, and who would thus be caught in the net of FATCA and citizenship-based taxation. Who exactly will be affected? Detailed attempt at an answer after the jump.

(Update: for those of you who don’t like PDFs, the folks over at Findlaw.com have posted the opinion as an HTML page.)

Table of contents

1. Overview
2. Children not legitimated by 14 November 1986
3. Court rejected longer residence for unwed mothers
4. Circuit split; probably headed for Supreme Court
5. Practical status of emigrants’ unregistered children
6. Conclusion

Overview

Morales-Santana was born in the Dominican Republic in 1962 to a Puerto Rican father and local mother. The couple married in 1970, which legitimated their pre-wedlock children. At the time of Morales-Santana’s birth, 8 USC § 1401(a)(7) required the U.S. citizen parent in a mixed-nationality couple to have spent ten years in the United States, including five years after the age of 14, in order to transmit citizenship to children (1401(a)(7) is now 1401(g), but with a shorter period of required residence than at the time of Morales-Santana’s birth). However, Morales-Santana’s father had moved to the Dominican Republic less than three weeks before fulfilling that requirement. Morales-Santana later moved to the U.S. on a green card sponsored by his father, never naturalised as a U.S. citizen, and was convicted of various crimes; his attempt to claim U.S. citizenship was part of a last-ditch effort to avoid deportation to the Dominican Republic.

Some children born under circumstances similar to those of Morales-Santana, and now still living in other countries, may have been told explicitly by lawyers or consular officers that they were not U.S. citizens. They may also not necessarily have received written documentation of those discussions. The Second Circuit’s remedy for the equal protection violation suffered by Morales-Santana under U.S. nationality law — which appears to affect all similar children as well — was to:

sever[] the ten‐year requirement in §§ 1409(a) and 1401(a)(7) and requir[e] every unwed citizen parent to satisfy the less onerous one‐year continuous presence requirement if the other parent lacks citizenship.

What I am struggling to understand here is the effect of the non-severed requirements of 1409(a), i.e. those which are unrelated to the gender-and-marital-status-specific five/ten-year vs. one-year residence requirement distinction which the court struck down.

The most important other 1409(a) requirement here is legitimation. This requirement survived Nguyen v. INS, 533 U.S. 53 (2001), and went unchallenged by Morales-Santana. As I interpret it, under the Second Circuit’s ruling Morales-Santana is deemed a U.S. citizen because he both meets 1409(c) as modified to be gender-neutral and was legitimated in his minority by his parents’ subsequent marriage (since at the time, 1409(a) required nothing beyond such legitimation — and the relevant period of paternal residence — in order for the out-of-wedlock child to derive U.S. citizenship from his father).

Children not legitimated by 14 November 1986

However, in Section 13 of the Immigration and Nationality Amendments of 1986, Congress added an additional requirement to 1409(a): that the out-of-wedlock child born or legitimated after the effective date of those amendments must in his minority get his U.S. citizen father to sign an agreement to provide financial support in order to derive citizenship, unless the father is deceased. The State Department created Form DS-5507, “Affidavit of Physical Presence or Residence, Parentage, and Financial Support” in response; according to their Paperwork Reduction Act estimates for 2012, 17,784 people per year file this form. (In their current request for public comment related to their upcoming PRA renewal, 80 FR 37034, they lowered this estimate slightly to 17,716 filers per year.)

So it also appears to me that Morales-Santana has no automatic effect on children of mixed-nationality couples born or legitimated after 1986. Some children of unmarried U.S. citizen fathers who previously would have been disqualified from citizenship due to their father’s short residence in the U.S. may now get U.S. citizenship, but only after having their father sign the affidavit of support.

Those whose fathers are willing to sign the affidavit of support but don’t rush to the consulate to do so are in the best position of all: de jure, they do not receive U.S. citizenship automatically but have the option to acquire it before turning 18 if they think it will be useful to their life plans, with nothing more than a visit to the consulate for the father to sign the necessary affidavit. A few months ago on Slashdot, one such father asked for advice about whether or not he should get U.S. citizenship for his kids, and received a number of well thought-out answers, such as this one by michelcolman:

Well, if they are almost 18, why don’t you just let them decide for themselves? Explain the pros and cons, they should be old enough to understand. If you think they lack the maturity to make the decision, then they’ll probably be better off without the complexity of filing American tax reports for the rest of their lives. Basically, don’t do it unless they understand the consequences and want you to.

This is much better advice than you get from most Internet Q&A sites, even sites whose participants are licensed professionals.

One other odd note: sometimes the one-year “continuous” residence requirement imposed on unmarried parents by 1409(c) is actually harder to prove than the “periods totaling” five/ten years requirement in 1401. As a story by Amelia Shaw in the Foreign Service Journal earlier this year describes, the State Department interprets 1409(c) to require uninterrupted presence in the United States during a year; any trips across the border reset the clock to zero, and for a parent born in a border state and with relatives in the neighbouring country, such trips might have been quite frequent.

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Court rejected longer residence for unwed mothers

Faced with the possibility of 1409(c) being declared unconstitutional, the U.S. government suggested that one remedy would be to strike 1409(c) entirely and thus apply the longer five/ten-year residence requirement of 1407(g)/1401(a)(7) to mothers and fathers alike, regardless of marital status. (See also page 45 of the Department of Justice brief in Flores-Villar v. United States, where they set out this argument in more detail; I presume they would have made similar arguments in the Second Circuit.) In rejecting this option, Lohier wrote:

[U]ltimately what tips the balance for us is the binding precedent that cautions us to extend rather than contract benefits in the face of ambiguous congressional intent. See, e.g., Westcott, 443 U.S. at 89 (“In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course.” (citing Jimenez v. Weinberger, 417 U.S. 628, 637‐38 (1974), and Frontiero v. Richardson, 411 U.S. 677, 691 n.25 (1973) (plurality opinion))); Heckler, 465 U.S. at 738, 739 n.5; Weinberger, 420 U.S. at 641‐42, 653; Soto‐Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 280‐81 (2d Cir. 1985). Indeed, we are unaware of a single case in which the Supreme Court has contracted, rather than extended, benefits when curing an equal protection violation through severance.

This passage is firmly rooted in the Homelander world view that to give someone U.S. citizenship is to “extend” an unalloyed benefit to that person, while to take it away is to “contract” a benefit. Lohier considers this proposition so obvious that he doesn’t even bother citing a case to support it. Of course, since the Supreme Court has been filled with patriotic Homelanders since its creation, he had numerous potential options; the most absurdly exaggerated one I can find at short notice is Schneiderman v. United States, 320 U.S. 118, 122 (1943):

For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men.

In the specific circumstances of Morales-Santana, this view is correct. But even other Homelanders with criminal convictions have sometimes found that they’d rather be non-Americans — for example Alan Horowitz of New York, who apparently hoped that without U.S. citizenship he might be able to achieve early release from custody in exchange for deportation to his country of other citizenship.

And if you’re not a Homelander but a citizen and resident of another country entirely? Well, like Justice Goldberg said in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184 (1963), a U.S. citizen who lives abroad:

… is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense he must return to this country …

In other words, you face all the “duties of citizenship” with nearly none of the benefits (please don’t tell me any tall tales about how much the Homelanders are paying for all those black helicopters come to save us — just ask the folks in Yemen). Someone who is already a citizen of another country and has a perfectly happy life there will naturally have misgivings about receiving U.S. citizenship and all its burdens, especially when the primary associated right — the right to work in the United States — is one they have no intention of ever exercising.

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Circuit split; probably headed for Supreme Court

As Reuters points out, the ruling in Morales-Santana results in a split between the circuits: in United States v. Flores-Villar, 536 F.3d 990 (9th Cir., 2008), the court held to the contrary that:

Flores-Villar acknowledges that the prevention of stateless children is a legitimate goal, but contends that it cannot be furthered by penalizing fathers. In his view, the real purpose of the statute is to perpetuate the stereotypical notion that women should have custody of illegitimate children. Further, he suggests, the length of residence in the United States says nothing about the father-child relationship or the biological basis of that relationship. And understandably, Flores-Villar emphasizes that his father in fact had a custodial relationship with him. However, the Court rejected similar submissions by the father in Nguyen. As it explained:

This line of argument misconceives the nature of both the governmental interest at issue and the manner in which we examine statutes alleged to violate equal protection. As to the former, Congress would of course be entitled to advance the interest of ensuring an actual, meaningful relationship in every case before citizenship is conferred. Or Congress could excuse compliance with the formal requirements when an actual father-child relationship is proved. It did neither here, perhaps because of the subjectivity, intrusiveness, and difficulties of proof that might attend an inquiry into any particular bond or tie. Instead, Congress enacted an easily administered scheme to promote the different but still substantial interest of ensuring at least an opportunity for a parent-child relationship to develop.   Petitioners’ argument confuses the means and ends of the equal protection inquiry; § 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some other alternative.

533 U.S. at 69, 121 S.Ct. 2053. The residence differential is directly related to statelessness;  the one-year period applicable to unwed citizen mothers seeks to insure that the child will have a nationality at birth. Likewise, it furthers the objective of developing a tie between the child, his or her father, and this country. Accordingly, we conclude that even if intermediate scrutiny applies, §§ 1401(a)(7) and 1409 survive.

An equally-divided Supreme Court affirmed this in a one-line ruling (Kagan recused herself). Such rulings generally are not considered precedential, which is why the Second Circuit was free to disagree. (For a layperson’s summary of this situation, see the old Slate article “What Happens in a SCOTUS Tie?”)

Update: Professor Ruthann Robson of the City University of New York School of Law, writing over at Constitutional Law Prof Blog, mentions a possibility I hadn’t considered — that the Obama administration won’t appeal — though she doesn’t state how likely she considers that.

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Practical status of emigrants’ unregistered children

If Morales-Santana really results in the State Department approving jus sanguinis citizenship for any unmarried emigrant’s previously-unqualified child who makes himself known to the government, it’s quite likely that many will choose not to make themselves known.

Rather obviously, if you and your parents never attempted to register your birth with a U.S. consulate — as many apparently do not — the State Department (let alone the IRS) is likely to be unaware that you even exist. Stephen Flott pointed this out in a 2013 post previously discussed by calgary411. Similarly, retired State Department official Andrew Grossman wrote in his 2007 draft paper “Conflicts in Cross-border Enforcement of Tax Claims”:

There is a significant number of instances of doubtful nationality where, because the requisite physical presence of a U.S. national parent has not been documented nor a foreign-born infant’s nationality claimed, an individual has not been regarded as a U.S. national for any purpose, including taxes … As far as can be determined and notwithstanding the text of the Revenue Rulings cited above, the United States seems not, after the Supreme Court decisions in Afroyim v. Rusk and Vance v. Terrazas, to have asserted with any force a claim to the allegiance of persons earlier divested of nationality under laws later abrogated with retroactive effect. Much less has it sought to claim as citizens their otherwise qualifying offspring born abroad or taken affirmative steps to subject either category of persons to tax on their worldwide income if they remained abroad.

(Cf. Rocha v. Immigration and Naturalization Service, 450 F.2d 946 (1st Cir. 1971) (U.S. nationality of mother deemed never to have been lost). It would seem a heroic undertaking for a tax agency to inquire sua sponte into matters relating to derivative acquisition of status, whether nationality or domicile. The task is rendered all the more difficult in the wake of Wauchope v. U.S. Dept. of State, 985 F.2d 1407 (9th Cir 1993) and Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.)

However, under the FATCA régime, some banks have become rather more aggressive in their enquiries not just into their customers’ birthplaces but their parentage as well. Such enquiries are made quite simple if the parents are customers of the same bank as their children.

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Conclusion

As ever, court cases by people who live in the U.S. and want U.S. citizenship drive the retroactive extension of citizenship to large populations who live elsewhere and are citizens of other countries. Some of those citizens of other countries may want U.S. citizenship. The remainder are perfectly happy being citizens of their own countries and have no desire for a citizenship they thought they lost or never had in the first place (and which even their own U.S. citizen father may have later given up). However, the voices of the latter group have never been heard in U.S. courts, with only one only one pending exception of which I’m aware.

Homelanders view the ruling in Morales Santana v. Lynch as a victory for human rights at home and “a step closer to equal citizenship”. But a real victory, which respects everyone’s rights and not just those of Homelanders, would be to let those emigrants’ kids who want U.S. citizenship get it upon application and fair warning of the potential impact to their ability to live overseas and enjoy equality with their non-U.S. citizen neighbours. Forcing everyone into citizenship whether they want it or not, making them pay twenty times more than in any civilised country to get out of it, and trapping them in it if they do not have the legal capacity to relinquish or renounce it, is no kind of moral victory at all either for the people thus trapped or the country doing the trapping.

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