Gender Bias Ruling Saves Imprisoned New York Man From Deportation


A verdict in a New York federal court has brought an end to a convoluted legal case on a very unusual issue, one that illustrates just how byzantine the country’s immigration laws can be.

It’s a story that starts more than 100 years ago, spans three countries — depending on your point of view — and ends with American citizenship for one Luis Morales, two years after he was locked up in an immigration detention facility.

At the heart of the case is a law governing when children born abroad to unwed U.S. citizens can be considered U.S. citizens themselves. As written, the statute requires U.S.-citizen mothers who give birth in another country to have actually resided in the U.S., continuously, for one year in order for their offspring to be considered full American citizens. However, that same law requires U.S.-citizen fathers to have resided in the U.S. for at least five years in order for their offspring to qualify.

The Second Circuit Court of Appeals’ ultimate verdict declared that the latter requirement — which applies different standards for men and women — is unconstitutional. Unwed fathers, the court said, are just as entitled to have their offspring admitted as citizens; the law was gender-biased, in essence, by requiring fathers living abroad to meet more stringent requirements.

But the decision, posted below, gets a hell of a lot more complicated than that.

The story really begins with the birth of Luis Morales’s father, Jose Dolores Morales, in Puerto Rico, way back in 1900. Jose Morales was not, of course, a U.S. citizen at the time of his birth. But as a resident of the island — a U.S. territory since the Mexican-American War — he was granted automatic U.S. citizenship in 1917, which extended that benefit to all Puerto Ricans under the Jones Act, passed that year.

Jose Morales remained in Puerto Rico until 1919, when he left for the Dominican Republic to work for a large international sugar company. Although he was residing in the Dominican Republic, the elder Morales remained a U.S. citizen, an expat.

With us so far?

Jose Morales stayed in the Dominican Republic for a few decades, and he was living there when little Luis Morales came along in 1962; the boy’s mother — who is not named in the decision — was a Dominican citizen.

Although the couple wasn’t married, by virtue of his father’s status, little Luis would have been considered an American citizen, too — a condition known as “derivative citizenship” — if not for a quirk in the law. Under the statute as it was then, derivative citizenship could only be passed on by a father who had been continuously present in the U.S., or one of its “outlying possessions,” like Puerto Rico, for at least ten years prior to the child’s birth.

Jose Morales had been living outside of Puerto Rico for considerably longer than that. So when the family moved to the U.S. in 1975, Luis Morales was denied full citizenship, and instead was classified as a lawful permanent resident.

Having lived in the U.S. since he was a teenager, Luis Morales, who is now 53 (and whose legal name is Luis Morales-Santana), built up a bit of a rap sheet in the 1970s and 1980s in the Bronx. In 1995 he was convicted of attempted murder in Queens County Supreme Court. After serving his sentence, as a lawful permanent resident, and not a full citizen, he was eligible for deportation. When he was released, Immigration and Customs Enforcement began removal proceedings against him.

It might seem to have been a done deal at that point. Jose Morales had not lived in a U.S. territory for ten years, so he was seemingly ineligible to confer citizenship on his son. Luis Morales would be deported back to Puerto Rico, his nominal country of origin.

But there was a wrinkle. Remember how Jose Morales became a citizen in 1917, as a resident of Puerto Rico, but didn’t strike out for the D.R. until two years later? Well, that approximately two-year stint in Puerto Rico didn’t satisfy the residency requirement for a man — but had Jose Morales been a woman, those two years would have satisfied the statute. Jose Morales would have then been eligible to confer citizenship on his son, and Luis Morales would be entitled to stay in the U.S.

Fast-forward to 2010, when Luis Morales filed a pro se petition challenging his deportation. He attacked several aspects of the law in question; maybe the D.R. was actually a U.S. territory at the time Jose Morales lived there, he argued, since it occupied the country from 1916 through 1924; maybe Jose Morales, by working for the Puerto Rico Sugar Company, a corporation with close ties to the U.S., could be squeezed in through another small exemption in the law.

None of those were effective. But in the end, it was the constitutional argument that prevailed. The court (made up of, ICYMI, a panel of two male and one female justices) wrote:

As both parties agree, had Morales-Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico…she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender-based difference in treatment that Morales-Santana claims violated his father’s right to equal protection.

The government argued that the different treatment of genders was necessary, in part, to ensure paternity. Mothers may have a harder time faking it, after all. But in the Morales case, paternity was not in doubt; his parents had “legitimated” his birth when they arrived in the U.S., so there was no question that Luis Morales was Jose Morales’s son. So the court rejected that argument.

Morales’s attorney, Steven Broome, said that he was happy he’d been able to secure a positive result for Morales, who is now set to be freed from the Green Haven Correctional Facility in Dutchess County. (Morales could not be reached for comment.)

“We’re thrilled,” Broome told the Voice. “We expect the client is going to be released today [Thursday].”

But the court’s decision actually conflicts with another ruling, on the same question, in a different federal court, setting up a potential conflict. The only way to resolve that conflict, if the government decides to appeal the decision, is to take the case to the Supreme Court. Broome said they would defend the appeal if necessary.

Morales Decision