Deportation Nixed by 2nd Circuit for Gender Bias

     MANHATTAN (CN) – A man facing deportation for felony convictions actually is a U.S. citizen by birth, the Second Circuit ruled Wednesday.
     Bedeviled by the 1952 immigration law in effect when he was born in the Dominican Republic, Luis Ramon Morales-Santana brought a claim for derivative citizenship after he was ordered deported in 2000.
     That statute offered citizenship at birth to a child born abroad to an unwed mother who was a U.S. citizen, as long as the mother had lived in the United States or one of its territories for at least a year sometime before the birth – even during her own childhood.
     Unwed citizen fathers, though, faced a more stringent 10-year residency requirement before citizenship could be conferred on a child born abroad. The law also stipulated that five of those 10 years had to occur after the father reached age 14.
     Though Morales-Santana’s Puerto Rican father was a U.S. citizen via the 1917 Jones Act, the federal statute that conferred citizenship on the people of Puerto Rico, his mother was Dominican.
     The couple were not married in 1962 when Morales-Santana was born in the Dominican Republic.
     Relying on the 1952 statute, an immigration judge decided that the man’s father did not meet the U.S. residency requirements of the Immigration and Nationality Act to convey citizenship.
     After the Board of Immigration Appeals declined to reopen the deportation proceedings in 2011, Morales-Santana sought relief from the federal appeals court in Manhattan, arguing that the residency requirements of the 1952 law violated his equal protections rights.
     Morales-Santana objected to the gender-based differences in the immigration law, contending his father could have met the residency requirement for unwed citizen mothers. He suggested the proper remedy was to make the residency requirement the same for both unwed fathers and mothers: one year.
     The Second Circuit agreed Wednesday, holding “that Morales-Santana derived citizenship at birth through his father.”
     Morales-Santana had come to the United States as a lawful permanent resident in 1975, five years after his parents married. His father died in 1976.
     The government unsuccessfully tried to defend the immigration law’s residency differences with two interests: that children born abroad to citizens develop a connection to the U.S., and that the possibility of “statelessness” for those children be reduced.
     A three-judge appellate panel found Wednesday, however, that the government “offers no reason, and we see no reason,” why unwed fathers need more time in the U.S. than unwed mothers “to assimilate the values” that the immigration law “seeks to ensure are passed on to citizen children born abroad.”
     The court also rejected the issue of issue of “statelessness” – having no citizenship conferred by place of birth or parents’ country of origin.
     “Neither reason nor history supports the government’s contention that the 1952 act’s gender-based physical presence requirements were motivated by concern for statelessness, as opposed to impermissible stereotyping” that fathers were less likely to care for out-of-wedlock children, Judge Raymond Lohier wrote for the three-judge panel.
     The court concluded that equal treatment could be achieved by altering the immigration law, the latest version of which, from 2012, now requires five years of U.S. residency by unwed citizen fathers, two of which must be after age 14.
     It suggested – and rejected – two options: doing away with any residency requirement, or holding every unwed citizen parent to the tougher 10-year standard.
     Instead, the court endorsed a one-year residency requirement for both unwed fathers and mothers.
     It remanded Morales-Santana’s case for further deliberation.
     Judge Susan Carney concurred as did the third member of the panel, U.S. District Judge Jed Rakoff, sitting by designation from the Southern District of New York.
     Court papers indicate that Morales-Santana’s criminal record dates to 1980, when he was convicted of criminal mischief in the Bronx and adjudicated a youthful offender. In 1995, he was convicted of burglary, robbery and attempted murder in Queens County Supreme Court and sentenced to 12 ½ to 25 years.
     The court also found him guilty of weapons possession and witness tampering.
     Morales-Santana was in prison in Green Haven Correctional Facility in Dutchess County in 1995 when immigration agents interviewed him and determined he was “an alien amenable to removal,” according to court papers.
     He was designated for deportation to the Dominican Republic.

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