Morales-Santana v. Lynch, No. 11-1252 (2d Cir. 2015)Annotate this Case
This opinion or order relates to an opinion or order originally issued on July 8, 2015.
11-1252-ag Morales-Santana v. Lynch 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: April 1, 2013 Decided: July 8, 2015 Final Submission: November 14, 2014 Amended: October 30, 2015) Docket No. 11 1252 ag X LUIS RAMON MORALES SANTANA, AKA LUIS MORALES, Petitioner, v. LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, * Respondent. X Before: LOHIER, CARNEY, Circuit Judges, and RAKOFF, District Judge. ** Petitioner Luis Ramon Morales Santana seeks review of a Board of Immigration Appeals (“BIA”) decision denying his motion to reopen his Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. as Respondent. ** The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 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. We accordingly REVERSE the BIA’s decision and REMAND for further proceedings consistent with this opinion. STEPHEN A. BROOME (Ellyde Roko and Jacob Waldman, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioner. IMRAN R. ZAIDI, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC (Stuart Delery, Acting Assistant Attorney General, Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, Civil Division, Kathryn M. McKinney, Attorney, Office of Immigration Litigation, Civil Division, on the brief), for Respondent. LOHIER, Circuit Judge: 32 Luis Ramon Morales Santana asks us to review a March 3, 2011 33 decision of the Board of Immigration Appeals (“BIA”) denying his motion to 2 1 reopen his removal proceedings relating to his claim of derivative 2 citizenship. Under the statute in effect when Morales Santana was born – the 3 Immigration and Nationality Act of 1952 (the “1952 Act”) – a child born 4 abroad to an unwed citizen mother and non citizen father has citizenship at 5 birth so long as the mother was present in the United States or one of its 6 outlying possessions for a continuous period of at least one year at some 7 point prior to the child’s birth. See 1952 Act, § 309(c), 66 Stat. 163, 238 39 8 (codified at 8 U.S.C. § 1409(c) (1952)).1 By contrast, a child born abroad to an 9 unwed citizen father and non citizen mother has citizenship at birth only if 10 the father was present in the United States or one of its outlying possessions 11 prior to the child’s birth for a period or periods totaling at least ten years, 12 with at least five of those years occurring after the age of fourteen. See id. 13 § 309(a) (codified at 8 U.S.C. § 1409(a) (1952)); see also id. § 301(a)(7) (codified 14 at 8 U.S.C. § 1401(a)(7) (1952)).2 Morales Santana’s father satisfied the Unless otherwise noted, references to §§ 1401 and 1409 are to those sections as they appear in the 1952 Act, and references to other statutory provisions are to those sections as they appear in the current codification. 2 Section 1401(a)(7) provided: The following shall be nationals and citizens of the United States at birth: . . . a person born outside the geographical limits of the United 1 3 1 requirements for transmitting citizenship applicable to unwed mothers but 2 not the more stringent requirements applicable to unwed fathers. On appeal, 3 Morales Santana argues principally that this gender based difference violates 4 the Fifth Amendment’s guarantee of equal protection and that the proper 5 remedy is to extend to unwed fathers the benefits unwed mothers receive 6 under § 1409(c). We agree and hold that Morales Santana derived citizenship 7 at birth through his father. We accordingly REVERSE the BIA’s decision and 8 REMAND for further proceedings consistent with this opinion. States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years . . . . Section 1409(a) provided that § 1401(a)(7) “shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act,” provided that paternity is established “by legitimation” before the child turns 21. Section 1409(c) provided: Notwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this Act, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. 4 BACKGROUND 1 2 I. Facts 3 The following undisputed facts are drawn from the record on appeal. 4 Morales Santana’s father, Jose Dolores Morales, was born in Puerto Rico on 5 March 19, 1900 and acquired United States citizenship in 1917 pursuant to the 6 Jones Act. See Jones Act of Puerto Rico, ch. 145, 39 Stat. 951 (codified at 8 7 U.S.C. § 1402 (1917)). He was physically present in Puerto Rico until February 8 27, 1919, 20 days before his nineteenth birthday, when he left Puerto Rico to 9 work in the Dominican Republic for the South Porto Rico Sugar Company. 10 In 1962 Morales Santana was born in the Dominican Republic to his 11 father and his Dominican mother. Morales Santana was what is statutorily 12 described as “legitimat[ed]” by his father upon his parents’ marriage in 1970 13 and admitted to the United States as a lawful permanent resident in 1975. 14 8 U.S.C. § 1409(a). Morales Santana’s father died in 1976. 15 II. Statutory Framework 16 Unlike citizenship by naturalization, derivative citizenship exists as of a 17 child’s birth or not at all. See 8 U.S.C. § 1409(a), (c); cf. id. § 1101(a)(23). The 18 law in effect at the time of birth governs whether a child obtained derivative 5 1 citizenship as of his or her birth. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d 2 Cir. 2005). Accordingly, the 1952 Act provides the statutory framework 3 applicable to Morales Santana’s nationality claim. As noted, the 1952 Act limits the ability of an unwed citizen father to 4 5 confer citizenship on his child born abroad – where the child’s mother is not a 6 citizen at the time of the child’s birth – more stringently than it limits the 7 ability of a similarly situated unwed citizen mother to do the same. Compare 8 8 U.S.C. § 1401(a)(7), with id. § 1409(c).3 We note that this difference in 9 treatment of unwed citizen fathers and unwed citizen mothers, though 10 diminished, persists in the current statute. Compare 8 U.S.C. § 1409(a) (2012) 11 (applying to unwed citizen fathers § 1401(g), which requires five years of 12 physical presence, two of which must be after age fourteen), with id. § 1409(c) 13 (maintaining the 1952 Act’s conferral of derivative citizenship based on an In addition to satisfying the requirements of § 1401(a)(7), the father must establish his paternity through legitimation of the child before the child turns 21. See 8 U.S.C. § 1409(a). As both parties agree, Morales Santana’s father legitimated his son in 1970. Morales Santana does not contest the statute’s legitimation requirement, and that requirement is not at issue on appeal. See Nguyen v. INS, 533 U.S. 53 (2001) (upholding as constitutional the similar legitimation requirement found in the current version of the statute, 8 U.S.C. § 1409(a)(4) (2000)). 3 6 1 unwed mother’s continuous physical presence for one year at any time prior 2 to the child’s birth). 3 III. Procedural History 4 In 2000 Morales Santana was placed in removal proceedings after 5 having been convicted of various felonies. He applied for withholding of 6 removal on the basis of derivative citizenship obtained through his father. An 7 immigration judge denied the application. In 2010 Morales Santana filed a 8 motion to reopen based on a violation of equal protection and newly obtained 9 evidence relating to his father. The BIA rejected Morales Santana’s 10 11 arguments for derivative citizenship and denied his motion to reopen. DISCUSSION 12 Morales Santana makes four arguments for derivative citizenship: 13 (1) that his father’s physical absence from the United States during the 20 14 days directly prior to his father’s nineteenth birthday constituted a de 15 minimis “gap” in physical presence, and that such gaps should not count 16 against a finding of physical presence for purposes of § 1401(a)(7); (2) that the 17 South Porto Rico Sugar Company, which employed his father after his father 18 moved to the Dominican Republic, was a multi national United States owned 7 1 company and therefore effectively part of the United States government or an 2 international organization as defined in 22 U.S.C. § 288, see 1966 Act to 3 Amend the Immigration and Nationality Act (the “1966 Act”), 80 Stat. 1322 4 (codified at 8 U.S.C. § 1401(a)(7) (1966)) (counting periods of employment for 5 certain organizations toward the statute’s physical presence requirements); (3) 6 that at the time his father moved to the Dominican Republic it was an 7 “outlying possession” of the United States; and (4) as noted, that the different 8 physical presence requirements applicable to unwed fathers and unwed 9 mothers under the 1952 Act violate equal protection. 10 Consistent with our obligation to avoid constitutional questions if 11 possible, we first address Morales Santana’s three statutory arguments for 12 derivative citizenship. See Escambia Cnty., Fla. v. McMillan, 466 U.S. 48, 51 13 (1984) (per curiam). 14 As to both his statutory and constitutional arguments, we review de 15 novo the question of Morales Santana’s derivative citizenship. See Phong 16 Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007). “If the petitioner 17 claims to be a national of the United States and the court of appeals finds 18 from the pleadings and affidavits that no genuine issue of material fact about 8 1 the petitioner’s nationality is presented, the court shall decide the nationality 2 claim.” 8 U.S.C. § 1252(b)(5)(A). No material facts are disputed. 3 I. Statutory Arguments 4 Morales Santana contends that his father’s absence from the United 5 States during the 20 days prior to his father’s nineteenth birthday constitutes 6 a de minimis “gap” in his father’s physical presence and that such gaps 7 should not be held against someone who claims to have satisfied the 1952 8 Act’s physical presence requirement. In support, Morales Santana points to 9 continuous physical presence requirements under the immigration laws that 10 explicitly excuse de minimis absences. See, e.g., id. § 1229b(b)(1)(A), (d)(2) 11 (2012) (absences of 90 continuous days or fewer do not break “continuity” of 12 physical presence for purposes of cancellation of removal for a lawful 13 permanent resident.); id. §§ 1255(l)(3), 1255a(a)(3)(B). By its plain terms, 14 § 1401(a)(7) had no similar exception. In any event, because Morales 15 Santana’s father left the United States and its outlying possessions 20 days 16 prior to his nineteenth birthday and never returned, there was no “gap” in his 17 father’s physical presence that bridged two periods of physical presence. So 18 even if we recognized an exception to the physical presence requirement in 9 1 § 1401 for de minimis “gaps,” we would reject Morales Santana’s claim on 2 this basis. 3 Relying on the 1966 Act, Morales Santana next argues that his father’s 4 employment with the South Porto Rico Sugar Company in the Dominican 5 Republic immediately after leaving Puerto Rico satisfied the statute’s physical 6 presence requirement by effectively continuing his physical presence through 7 the requisite period. It is true that the 1966 Act provided that employment 8 with the United States Government or with an international organization, as 9 defined in 22 U.S.C. § 288, satisfied the physical presence requirement. See 10 8 U.S.C. § 1401(a)(7) (1966). But Morales Santana’s argument lacks merit 11 because his father’s employment with the South Porto Rico Sugar Company, a 12 multinational company, did not constitute employment with the United 13 States Government. See Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998). Nor did 14 it constitute employment with an international organization as defined in 15 22 U.S.C. § 288, since the South Porto Rico Sugar Company was neither “a 16 public international organization in which the United States participates 17 pursuant to any treaty or under the authority of any Act of Congress 10 1 authorizing such participation or making an appropriation for such 2 participation,” nor “designated by the President” as such. 22 U.S.C. § 288. As his final statutory argument, Morales Santana contends that the 3 4 Dominican Republic was an “outlying possession” of the United States for 5 purposes of the 1952 Act when Morales Santana’s father was there in 1919. 6 Two factors convince us that Congress did not intend to include the 7 Dominican Republic within the scope of the term “outlying possession” in 8 § 1401.4 First, there is no treaty or lease pursuant to which the Dominican 9 10 Republic was acquired. This stands in contrast to the Philippines, Guam, 11 Puerto Rico, and the U.S. Virgin Islands, all of which were acquired by the 12 United States by treaty, see Treaty of Peace between the United States and the 13 Kingdom of Spain, 30 Stat. 1754 (1899); Convention between the United States 14 and Denmark, 39 Stat. 1706 (1917), and all of which were outlying possessions 15 when the United States exercised sovereignty over them, see Matter of V , 9 I. Congress did not define “outlying possessions” until the Nationality Act of 1940, which defined “outlying possessions” as “all territory . . . over which the United States exercises rights of sovereignty, except the Canal Zone.” See § 101(e), 54 Stat. 1137 (codified at 8 U.S.C. § 501(e) (1940)). The 1952 Act defined the term to include only “American Samoa and Swains Island.” 101(a)(29), 66 Stat. 170 (codified at 8 U.S.C. § 1101(a)(29) (1952)). 4 11 1 & N. Dec. 558, 561 (1962); Matter of Y , 7 I. & N. Dec. 667, 668 (1958). The 2 case of Guantanamo Bay, Cuba is a little different in that it involves both a 3 lease and a treaty, but it yields the same result vis à vis the Dominican 4 Republic. In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court 5 determined that the “complete jurisdiction and control” by the United States 6 over Guantanamo Bay constituted “de facto” sovereignty over it. Id. at 753 55 7 (quotation marks omitted). The Court added, though, that in a 1903 Lease 8 Agreement between Cuba and the United States, the former granted the latter 9 “complete jurisdiction and control” over Guantanamo Bay and that “[u]nder 10 the terms of [a] 1934 [t]reaty, . . . Cuba effectively has no rights as a sovereign 11 until the parties agree to modification of the 1903 Lease Agreement or the 12 United States abandons” Guantanamo Bay. Id. at 753. By contrast, there is no 13 lease or treaty that conferred to the United States de facto or de jure 14 sovereignty over the Dominican Republic. 15 Second, we acknowledge the historical fact that the United States 16 exercised significant control during its military occupation of the Dominican 17 Republic from 1916 to 1924. See Ingenio Porvenir C. Por A. v. United States, 18 70 Ct. Cl. 735, 738 (1930). But that control did not extinguish the sovereignty 12 1 of the Dominican Republic. Indeed, the Proclamation of the Military 2 Occupation of Santo Domingo by the United States specifically declared that 3 the purpose of the temporary military occupation was “to give aid to [the 4 Dominican Republic] in returning to a condition of internal order” without 5 “destroying the sovereignty of” the Dominican Republic. 11 Supp. Am. J. 6 Int’l L. 94, 94 96 (1917) (Nov. 29, 1916 Proclamation); see also Bruce J. Calder, 7 The Impact of Intervention: The Dominican Republic During the U.S. 8 Occupation of 1916 1924 xxvii, 17, 205 (2d ed. 2006). 9 Having rejected Morales Santana’s statutory arguments for derivative 10 citizenship, we now consider his constitutional equal protection argument. 11 II. Equal Protection 12 Morales Santana argues principally that the 1952 Act’s treatment of 13 derivative citizenship conferral rights violates the Fifth Amendment’s 14 guarantee of equal protection.5 As we have explained, under the 1952 Act, an Morales Santana has standing to assert this equal protection claim on behalf of his father since Morales Santana alleges that his father suffered an injury in fact, that his father bears a close relation to him, and that his father’s ability to assert his own interests is hindered because his father is deceased. See Campbell v. Louisiana, 523 U.S. 392, 397 (1998) (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)); see also Miller v. Albright, 523 U.S. 420, 433 (1998) 5 13 1 unwed citizen mother confers her citizenship on her child (born abroad to a 2 non citizen biological father) so long as she has satisfied the one year 3 continuous presence requirement prior to the child’s birth. The single year of 4 presence by the mother can occur at any time prior to the child’s birth – 5 including, for example, from the mother’s first birthday until her second 6 birthday. An unwed citizen father, by contrast, faces much more stringent 7 requirements under 8 U.S.C. §1409(a), which incorporates § 1401(a)(7). He is 8 prevented from transmitting his citizenship (to his child born abroad to a 9 non citizen mother) unless he was physically present in the United States or 10 an outlying possession prior to the child’s birth for a total of at least ten 11 years.6 Because five of those years must follow the father’s fourteenth 12 birthday, an unwed citizen father cannot transmit his citizenship to his child 13 born abroad to a non citizen mother before the father’s nineteenth birthday. 14 Eighteen year old citizen fathers and their children are out of luck. (opinion of Stevens, J.); id. at 449 50 (O’Connor, J., concurring); id. at 454 n.1 (Scalia, J., concurring); id. at 473 (Breyer, J., dissenting). 6 As noted, the father must also satisfy a legitimation requirement. See 8 U.S.C. § 1409(a). 14 1 As both parties agree, had Morales Santana’s mother, rather than his 2 father, been a citizen continuously present in Puerto Rico until 20 days prior 3 to her nineteenth birthday, she would have satisfied the requirements to 4 confer derivative citizenship on her child. It is this gender based difference in 5 treatment that Morales Santana claims violated his father’s right to equal 6 protection. 7 The Government asserts that the difference is justified by two interests: 8 (1) ensuring a sufficient connection between citizen children and the United 9 States, and (2) avoiding statelessness. In what follows, we apply intermediate 10 scrutiny to assess these asserted interests, and we conclude that neither 11 interest is advanced by the statute’s gender based physical presence 12 requirements. After determining that these physical presence requirements 13 violate equal protection, we apply the statute’s severance clause and 14 determine that Morales Santana, under the statute stripped of its 15 constitutional defect, has citizenship as of his birth. 16 17 18 A. Level of Scrutiny We apply intermediate, “heightened” scrutiny to laws that discriminate on the basis of gender. United States v. Virginia, 518 U.S. 515, 531 33 (1996). 15 1 Under intermediate scrutiny, the government classification must serve actual 2 and important governmental objectives, and the discriminatory means 3 employed must be substantially related to the achievement of those 4 objectives. Nguyen v. INS, 533 U.S. 53, 68 (2001); Virginia, 518 U.S. at 533. 5 Furthermore, the justification for the challenged classification “must be 6 genuine, not hypothesized or invented post hoc in response to litigation. And 7 it must not rely on overbroad generalizations about the different talents, 8 capacities, or preferences of males and females. Virginia, 518 U.S. at 533. 9 In urging us to apply rational basis scrutiny instead, the Government 10 relies on Fiallo v. Bell, 430 U.S. 787 (1977). In Fiallo, the Supreme Court 11 applied rational basis scrutiny to a section of the 1952 Act that gave special 12 preference for admission into the United States to non citizens born out of 13 wedlock seeking entry by virtue of a relationship with their citizen mothers, 14 but not to similarly situated non citizens seeking entry by virtue of a 15 relationship with their citizen fathers. See id. at 798. The Court reasoned that 16 rational basis scrutiny was warranted because “over no conceivable subject is 17 the legislative power of Congress more complete than it is over the admission 18 of aliens,” and “[o]ur cases have long recognized the power to expel or 16 1 exclude aliens as a fundamental sovereign attribute exercised by the 2 Government’s political departments.” Id. at 792 (emphases added) (quotation 3 marks omitted); see also Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) 4 (Congress has “plenary power” to make rules for the admission and exclusion 5 of non citizens. (quotation marks omitted)). 6 But Fiallo is distinguishable. In Fiallo, the children’s alienage 7 implicated Congress’s “exceptionally broad power” to admit or remove non 8 citizens. Fiallo, 430 U.S. at 794. Here, by contrast, there is no similar issue of 9 alienage that would trigger special deference. Because Morales Santana 10 instead claims pre existing citizenship at birth, his challenge does not 11 implicate Congress’s “power to admit or exclude foreigners,” id. at 795 n.6, 12 and therefore is not governed by Fiallo. 13 Our view of Fiallo’s limited scope is grounded in Supreme Court and 14 circuit caselaw. As an initial matter, we note that the Supreme Court has 15 never applied the deferential Fiallo standard to issues of gender 16 discrimination under § 1409, despite being asked to do so on at least three 17 occasions. See Miller v. Albright, 523 U.S. 420 (1998) (declining to apply 18 Fiallo); Nguyen v. INS, 533 U.S. 53 (2001) (applying heightened scrutiny); 17 1 United States v. Flores Villar, 131 S. Ct. 2312 (2011) (per curiam) (affirming 2 without opinion by divided 4 4 vote). Justice Stevens’ opinion in Miller 3 succinctly described Fiallo’s limitation: “It is of significance that the 4 petitioner in this case, unlike the petitioners in Fiallo, . . . is not challenging 5 the denial of an application for special [immigration] status. She is contesting 6 the Government s refusal to . . . treat her as a citizen. If she were to prevail, 7 the judgment . . . would confirm her pre existing citizenship.” Miller, 523 U.S. 8 at 432 (opinion of Stevens, J.); see also id. at 429 (“Fiallo . . . involved the 9 claims of . . . aliens to a special immigration preference, whereas here 10 petitioner claims that she is, and for years has been, an American citizen.”). 11 Although no opinion in Miller received a majority of votes, we 12 observed in Lake v. Reno that “seven justices in Miller would have applied 13 heightened scrutiny . . . [to INA] section 309(a).” 226 F.3d 141, 148 (2d Cir. 14 2000), vacated sub nom. Ashcroft v. Lake, 533 U.S. 913 (2001) (citing Nguyen), 15 abrogated on other grounds by Lake v. Ashcroft, 43 F. App x 417, 418 (2d Cir. 16 2002). Later, in Lewis v. Thompson, we explained Lake’s holding in a way 17 that makes it clear that heightened scrutiny, rather than Fiallo’s more 18 deferential standard of review, should apply to Morales Santana’s claim: 18 1 “[W]e have already held in Lake, drawing an inference from the various 2 opinions of the Justices in Miller, that citizen claimants with an equal 3 protection claim deserving of heightened scrutiny do not lose that favorable 4 form of review simply because the case arises in the context of immigration.” 5 252 F.3d 567, 591 (2d Cir. 2001); see also id. at 590 (“As we recognized in Lake, 6 Fiallo itself made clear that the reduced threshold of justification for 7 governmental action that applied to immigrants did not apply to citizens.” 8 (emphasis added) (quotation marks omitted)). Our sister circuits that have 9 considered Fiallo’s application to claims similar to Morales Santana’s are in 10 accord. See Nguyen v. INS, 208 F.3d 528, 535 (5th Cir. 2000) (noting that “the 11 statute in Fiallo dealt with the claims of aliens for special immigration 12 preferences for aliens, whereas the petitioner’s claim in this case is that he is a 13 citizen”), aff’d, 533 U.S. 53 (2001); Breyer v. Meissner, 214 F.3d 416, 425 (3d 14 Cir. 2000) (applying heightened scrutiny to § 1993 of the Revised Statutes of 15 1874, a predecessor to § 1409, because it “created a gender classification with 16 respect to [petitioner’s] mother’s ability to pass her citizenship to her foreign 17 born child at his birth”); United States v. Ahumada Aguilar, 189 F.3d 1121, 18 1126 (9th Cir. 1999) (applying Miller to “f[i]nd § 1409(a)(4) unconstitutional by 19 1 applying heightened scrutiny”), vacated, 533 U.S. 913 (2001) (citing Nguyen), 2 abrogated on other grounds by 295 F.3d 943 (9th Cir. 2002); cf. United States 3 v. Flores Villar, 536 F.3d 990, 996 n.2 (9th Cir. 2008) (“Like the Supreme Court 4 in Nguyen, we will assume that intermediate scrutiny applies.”), aff’d by an 5 equally divided Court, 131 S. Ct. 2312. 6 For these reasons, we conclude that the gender based scheme in §§ 1401 7 and 1409 can be upheld only if the Government shows that it is substantially 8 related to an actual and important governmental objective. See Virginia, 518 9 U.S. at 531, 533, 535 36; Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 10 (1982). In assessing the validity of the gender based classification, moreover, 11 we consider the existence of gender neutral alternatives to the classification. 12 See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151 (1980); Orr v. 13 Orr, 440 U.S. 268, 281 (1979); Weinberger v. Wiesenfeld, 420 U.S. 636, 653 14 (1975). B. Governmental Interests and Tailoring 15 16 Having determined that intermediate scrutiny applies, we examine the 17 two interests that the Government claims support the statute’s gender based 18 distinction. 20 1 2 3 4 1. Ensuring a Sufficient Connection Between the Child and the United States The Government asserts that Congress passed the 1952 Act’s physical 5 presence requirements in order to “ensur[e] that foreign born children of 6 parents of different nationalities have a sufficient connection to the United 7 States to warrant citizenship.” Respondent’s Br. 38 39. As both parties agree, 8 this interest is important, and Congress actually had it in mind when 9 requiring some period of physical presence before a citizen parent could 10 confer citizenship on his or her child born abroad. See Petitioner’s Br. 35 n.17 11 (citing Weedin v. Chin Bow, 274 U.S. 657, 666 67 (1927)). 12 The Government invokes this important interest but fails to justify the 13 1952 Act’s different treatment of mothers and fathers by reference to it. It 14 offers no reason, and we see no reason, that unwed fathers need more time 15 than unwed mothers in the United States prior to their child’s birth in order to 16 assimilate the values that the statute seeks to ensure are passed on to citizen 17 children born abroad. 18 We recognize that our determination conflicts with the decision of the 19 Ninth Circuit in Flores Villar, 536 F.3d 990, which addressed the same 20 statutory provisions and discussed the same governmental interest in 21 1 ensuring a connection between child and country. The Ninth Circuit 2 concluded that in addition to preventing or reducing statelessness – an 3 objective we address below – “[t]he residence differential . . . furthers the 4 objective of developing a tie between the child, his or her father, and this 5 country.” Flores Villar, 536 F.3d at 997. The Ninth Circuit provided no 6 explanation for its conclusion, and the Government provides none here. 7 Instead, the Government relies on Nguyen to explain why the different 8 physical presence requirements for unwed men and women reflect a concern 9 with ensuring an adequate connection between the child and the United 10 States. We are not persuaded. In Nguyen, the Court upheld the Immigration 11 and Nationality Act’s requirement that a citizen father seeking to confer 12 derivative citizenship on his foreign born child take the affirmative step of 13 either legitimating the child, declaring paternity under oath, or obtaining a 14 court order of paternity.7 See Nguyen, 533 U.S. at 62; 8 U.S.C. § 1409(a)(4) 15 (2000). The Nguyen Court determined that two interests supported the 16 legitimation requirement for citizen fathers of children born abroad. For brevity, we refer to these as constituting a “legitimation requirement,” though legitimation is just one of three ways of satisfying the statutory provision. 7 22 1 The first interest, “assuring that a biological parent child relationship 2 exists,” Nguyen, 533 U.S. at 62; see Miller, 523 U.S. at 435 36, is irrelevant to 3 the 1952 Act’s physical presence requirements because derivative citizenship 4 separately requires unwed citizen fathers to have legitimated their foreign 5 born children. Here, Morales Santana’s father established his biological tie to 6 Morales Santana by legitimating him. His physical presence in Puerto Rico 7 for ten years as opposed to one year prior to Morales Santana’s birth would 8 have provided no additional assurance that a biological tie existed. 9 The Nguyen Court identified a second interest in ensuring “that the 10 child and the citizen parent have some demonstrated opportunity or potential 11 to develop” a “real, meaningful relationship.” Nguyen, 533 U.S. at 64 65. The 12 Court explained that a biological mother, by virtue of giving birth to the child, 13 “knows that the child is in being and is hers,” but that an unwed biological 14 father might in some cases not even “know that a child was conceived, nor is 15 it always clear that even the mother will be sure of the father’s identity.” Id. 16 at 65. Rather than requiring a case by case analysis of whether a father or a 17 mother has a “real, meaningful relationship” with a child born abroad, 18 “Congress enacted an easily administered scheme to promote the different 23 1 but still substantial interest of ensuring at least an opportunity for a parent 2 child relationship to develop.” Id. at 69. This interest in ensuring the 3 “opportunity for a real, meaningful relationship” between parent and child is 4 likewise not relevant to the 1952 Act’s physical presence requirements. By 5 legitimating his son, Morales Santana’s father took the affirmative step of 6 demonstrating that an opportunity for a meaningful relationship existed. 7 And again, requiring that Morales Santana’s father be physically present in 8 Puerto Rico prior to Morales Santana’s birth for ten years instead of one year 9 would have done nothing to further ensure that an opportunity for such a 10 11 relationship existed. So we agree that unwed mothers and fathers are not similarly situated 12 with respect to the two types of parent to child “ties” justifying the 13 legitimation requirement at issue in Nguyen. But unwed mothers and fathers 14 are similarly situated with respect to how long they should be present in the 15 United States or an outlying possession prior to the child’s birth in order to 16 have assimilated citizenship related values to transmit to the child. 17 Therefore, the statute’s gender based distinction is not substantially related to 24 1 the goal of ensuring a sufficient connection between citizen children and the 2 United States. 3 4 2. Preventing Statelessness Having concluded that the Government’s interest in establishing a 5 connection between the foreign born child and the United States does not 6 explain or justify the gender based distinction in the 1952 Act’s physical 7 presence requirements, we now turn to the Government’s other asserted 8 interest. The Government argues that Congress enacted different physical 9 presence requirements in § 1409(a) (incorporating § 1401(a)(7)) and § 1409(c) 10 to reduce the level of statelessness among newborns. For example, a child 11 born out of wedlock abroad may be stateless if he is born inside a country that 12 does not confer citizenship based on place of birth and neither of the child’s 13 parents conferred derivative citizenship on him. 14 The avoidance of statelessness is clearly an important governmental 15 interest. See Kennedy v. Mendoza Martinez, 372 U.S. 144, 160 61 (1963); Trop 16 v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion). Contrary to the 17 Government’s claim, though, avoidance of statelessness does not appear to 18 have been Congress’s actual purpose in establishing the physical presence 25 1 requirements in the 1952 Act, see Virginia, 518 U.S. at 533, and in any event 2 the gender based distinctions in the 1952 Act’s physical presence 3 requirements are not substantially related to that objective. a. 4 Actual Purpose Some historical background is useful to understand Congress’s purpose 5 6 in establishing the 1952 Act’s gender based physical presence requirements. 7 Until 1940, a citizen father whose child was born abroad transmitted his 8 citizenship to that child if the father had resided in the United States for any 9 period of time prior to the child’s birth. See Rogers v. Bellei, 401 U.S. 815, 823 10 25 (1971) (discussing the Act of March 26, 1790, 1 Stat. 103, and successive 11 statutes); Act of May 24, 1934, ch. 344, 48 Stat. 797; Nationality Act of 1940 (the 12 “1940 Act”), ch. 876, § 201(g), 54 Stat. 1137, 1139. Consistent with common 13 law notions of coverture, and with the notion that the husband determined 14 the political and cultural character of his dependents (wife and children 15 included), prior to 1934 married women had no statutory right to confer their 16 own citizenship.8 See Brief [of] Amici Curiae of Professors of History, In 1934 Congress granted citizen mothers, whether married or unmarried, the right to confer citizenship on their children born abroad if the mother 8 26 1 Political Science, and Law in Support of Petitioner at 9, Flores Villar v. United 2 States, 131 S. Ct. 2312 (2010), 2010 WL 2602009; Candice Lewis Bredbenner, A 3 Nationality of Her Own: Women, Marriage, and the Law of Citizenship 84 4 (1998). But for unmarried citizen mothers, the State Department’s practice 5 since at least 1912 was to grant citizenship to their foreign born children on 6 the theory that an unmarried mother “stands in the place of the father” and is 7 in any event “bound to maintain [the child] as its natural guardian.” To 8 Revise and Codify the Nationality Laws of the United States Into a 9 Comprehensive Nationality Code: Hearing Before the H. Comm. on 10 Immigration and Naturalization, 76th Cong. 431 (1945) (quotation marks 11 omitted). 12 In 1940 Congress for the first time explicitly addressed the situation of 13 children born out of wedlock. It enacted Section 205 of the 1940 Act, 54 Stat. 14 at 1139 40, which provided that citizen fathers and married citizen mothers 15 could transmit citizenship to their child born abroad only after satisfying an 16 age calibrated ten year physical presence requirement, but that unmarried 17 citizen mothers could confer citizenship if they had resided in the United satisfied the same minimal residency requirement applicable to citizen fathers. See Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797. 27 1 States at any point prior to the child’s birth. The 1952 Act retained this basic 2 statutory structure, though it imposed a somewhat more stringent 3 requirement that unmarried mothers have been physically present in the 4 United States for a continuous period of one year in order to confer 5 citizenship. 8 U.S.C. § 1409(c). 6 Neither the congressional hearings nor the relevant congressional 7 reports concerning the 1940 Act contain any reference to the problem of 8 statelessness for children born abroad.9 The congressional hearings 9 concerning the 1952 Act are similarly silent about statelessness as a driving 10 concern.10 Notwithstanding the absence of relevant discussion concerning the Cf. Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2205 n.283 (2014) (“[I]n the many hundreds of pre 1940 administrative memos I have read that defend or explain recognition of the nonmarital foreign born children of American mothers as citizens, I have identified exactly one memo by a U.S. official that mentions the risk of statelessness for the foreign born nonmarital children of American mothers as a concern.” (citing Memorandum from Green Hackworth, Office of the Solicitor, U.S. Dep’t of State, to Richard Flournoy, Office of the Solicitor, U.S. Dep’t of State (Aug. 14, 1928) (on file with National Archives and Records Administration, Relevant Group 59, Central Decimal File 131))). 10 The Government does cite one congressional report in which statelessness was mentioned in conjunction with the 1952 Act. A Senate Report dated January 29, 1952 mentions the problem of statelessness in explaining why the 9 28 1 problem of statelessness for children born abroad in the legislative history, 2 the Government points to the Executive Branch’s explanatory comments to 3 Section 204 of the proposed nationality code that Congress would ultimately 4 enact as the 1940 Act. See 76th Cong. 431. These comments refer to a 1935 5 law review article entitled A Comparative Study of Laws Relating to 6 Nationality at Birth and to Loss of Nationality, 29 Am. J. Int’l L. 248 (1935), by 7 Durward V. Sandifer.11 According to the article, in 1935 approximately thirty 1952 Act eliminated a provision in the 1940 Act that had conditioned a citizen mother’s ability to transmit nationality to her child on the father’s failure to legitimate the child prior to the child’s eighteenth birthday. See 1940 Act, § 205, 54 Stat. at 1140 (“In the absence of . . . legitimation or adjudication [during the child’s minority], . . . the child” born abroad to an unmarried citizen mother “shall be held to have acquired at birth [the mother’s] nationality status.” (emphases added)). The 1952 Act eliminated this provision, allowing the mother to transmit citizenship independent of the father’s actions. S. Rep. No. 1137, at 39 (1952) (“This provision establishing the child’s nationality as that of the [citizen] mother regardless of legitimation or establishment of paternity is new. It insures that the child shall have a nationality at birth.” (emphasis added)). Although the Report reflects congressional awareness of statelessness as a problem, it does not purport to justify the gender based distinctions in the physical presence provisions at issue in this appeal. 11 Contrary to the Government’s assertion, the Sandifer article does not indicate that it was “conducted by the State Department.” Rather, Sandifer, who worked at the State Department at the time he wrote the article, explains at the outset that he decided to write it at the suggestion of a colleague, not 29 1 countries had statutes assigning children born out of wedlock the citizenship 2 of their mother. Id. at 258. From the comments and the article, the 3 Government urges us to infer that “Congress was aware” there existed “a 4 substantial risk that a child born to an unwed U.S. citizen mother in a country 5 employing [laws determining citizenship based on lineage, rather than place 6 of birth] would be stateless at birth unless the mother could pass her 7 citizenship to her child,” and that this risk was “unique” to the children of 8 unwed citizen mothers. Respondent’s May 8, 2013 Supp. Br. 2, 6 7.12 9 Based on our review of the Executive Branch’s explanatory comments 10 and the Sandifer article, we decline the Government’s invitation. The 11 explanatory comments do not mention statelessness and do not refer to the 12 Sandifer article’s discussion of statelessness. In any event, the Sandifer article 13 itself does not support the Government’s argument that the children of pursuant to an official directive. See Sandifer, Comparative Study, 29 Am. J. Int’l L. at 248. 12 In response to our order requesting supplemental briefing on the issue, the Government was unable to furnish any other evidence that Congress enacted or the Executive encouraged the 1940 Act’s or the 1952 Act’s gender based physical presence requirements due to concerns about statelessness. 30 1 unwed citizen mothers faced a greater risk of statelessness than the children 2 of unwed citizen fathers. 3 While the Executive Branch’s comments ignore the problem of 4 statelessness, they arguably reflect gender based generalizations concerning 5 who would care for and be associated with a child born out of wedlock. 13 6 Other contemporary administrative memoranda similarly ignore the risk of 7 statelessness for children born out of wedlock abroad to citizen mothers.14 In sum, we discern no evidence (1) that Congress enacted the 1952 Act’s 8 9 10 gender based physical presence requirements out of a concern for statelessness, (2) that the problem of statelessness was in fact greater for The comments reflect the view that the mother “is bound to maintain” “custody and control of . . . a child [born out of wedlock] as against the putative father” as its “natural guardian” and that “[t]he mother, as guardian by nurture, has the right to the custody and control of her bastard child.” 76th Cong. 431 (quotation marks omitted); see also Collins, 123 Yale L.J. at 2205 (“[T]he historical record reveals that the pronounced gender asymmetry of the  Nationality Act’s treatment of nonmarital foreign born children of American mothers and fathers was shaped by contemporary maternalist norms regarding the mother’s relationship with her nonmarital child – and the father’s lack of such a relationship.”); id. at 2203 (quoting as representative of contemporary views an internal letter to a State Department official stating that “as a practical matter, it is well known that almost invariably it is the mother who concerns herself with [the nonmarital] child”). 14 See Collins, 123 Yale L.J. at 2205 n.283. 13 31 1 children of unwed citizen mothers than for children of unwed citizen fathers, 2 or (3) that Congress believed that the problem of statelessness was greater for 3 children of unwed citizen mothers than for children of unwed citizen fathers. 4 We conclude that neither reason nor history supports the Government’s 5 contention that the 1952 Act’s gender based physical presence requirements 6 were motivated by a concern for statelessness, as opposed to impermissible 7 stereotyping. 8 9 10 11 b. Substantial Relationship Between Ends and Means Even assuming for the sake of argument that preventing statelessness 12 was Congress’s actual motivating concern when it enacted the physical 13 presence requirements, we are persuaded by the availability of effective 14 gender neutral alternatives that the gender based distinction between 15 § 1409(a) (incorporating § 1401(a)(7)) and § 1409(c) cannot survive 16 intermediate scrutiny. See Wengler, 446 U.S. at 151 (invalidating a gender 17 based classification where a gender neutral approach would serve the needs 18 of both classes); Orr, 440 U.S. at 282 83 (“A gender based classification which, 19 as compared to a gender neutral one, generates additional benefits only for 20 those it has no reason to prefer cannot survive equal protection scrutiny.”). 32 1 As far back as 1933, Secretary of State Cordell Hull proposed just such a 2 gender neutral alternative in a letter to the Chairman of the House Committee 3 on Immigration and Naturalization. Secretary Hull suggested that the 4 immigration laws be revised “to obtain the objective of parity between the 5 sexes in nationality matters” by “remov[ing] . . . discrimination between” 6 mothers and fathers “with regard to the transmission of citizenship to 7 children born abroad.” Hull proposed the following language: PROPOSED AMENDMENT . . . 8 9 10 11 12 13 14 15 (d) A child hereafter born out of wedlock beyond the limits and jurisdiction of the United States and its outlying possessions to an American parent who has resided in the United States and its outlying possessions, there being no other legal parent under the law of the place of birth, shall have the nationality of such American parent. Letter from Sec’y Hull to Chairman Dickstein (Mar. 27, 1933) (Respondent’s 16 May 8, 2013 Supp. Br. Ex. B).15 And unlike the legitimation requirement at issue in Nguyen, which 17 18 could be satisfied by, for example, “a written acknowledgment of paternity In 1936, an Executive Branch official who participated in drafting the 1940 Act recognized that “Section 204 [of the 1940 Act] as drawn up by the Committee slightly discriminates in favor of women.” Letter from John J. Scanlon to Ruth B. Shipley, U.S. Dep’t of State (Mar. 7, 1936) (Petitioner’s Nov. 14, 2014 Supp. Br. Ex. 4); see also Collins, 123 Yale L.J. at 2235. 15 33 1 under oath,” the physical presence requirement that Morales Santana 2 challenges imposes more than a “minimal” burden on unwed citizen fathers. 3 See Nguyen, 533 U.S. at 70 71. It adds to the legitimation requirement ten 4 years of physical presence in the United States, five of which must be after the 5 age of fourteen. In our view, this burden on a citizen father’s right to confer 6 citizenship on his foreign born child is substantial.16 For these reasons, the gender based distinction at the heart of the 1952 7 8 Act’s physical presence requirements is not substantially related to the 9 achievement of a permissible, non stereotype based objective.17 As we have already noted, the burden is actually impossible for eighteen year old unwed citizen fathers to satisfy. 17 We note once more that our conclusion differs from that of the Ninth Circuit in Flores Villar. There the Ninth Circuit assumed, sub silentio, that Congress’s enactment of the physical presence requirements was actually motivated by concern for reduction in the risk of statelessness. It also nominally assumed, without deciding, that intermediate scrutiny applied. See 536 F.3d at 996 & n.2. We disagree with the Ninth Circuit that the Government has carried its burden of showing an “exceedingly persuasive justification” for the statute’s gender based classification as a means of addressing the problem of statelessness. See Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981). The Government has not shown that the problem arose – or was perceived to arise – more often with citizen mothers than with citizen fathers of children born out of wedlock abroad. See, e.g., Sandifer, Comparative Study, 29 Am. J. Int’l L. at 254; Brief of Amici Curiae Scholars on 16 34 1 2 3. Remedy We now turn to the most vexing problem in this case. Here, two 3 statutory provisions – § 1409(c) and (a)18 – combine to violate equal 4 protection. What is the remedy for this violation of equal protection, where 5 citizenship is at stake? Ordinarily, “when the ‘right invoked is that to equal 6 treatment,’ the appropriate remedy is a mandate of equal treatment, a result 7 that can be accomplished by withdrawal of benefits from the favored class as 8 well as by extension of benefits to the excluded class.” Heckler v. Mathews, 9 465 U.S. 728, 740 (1984) (emphasis omitted) (quoting Iowa Des Moines Nat’l 10 Bank v. Bennett, 284 U.S. 239, 247 (1931)); accord Califano v. Westcott, 443 11 U.S. 76, 89 (1979). 12 As we see it, “equal treatment” might be achieved in any one of three 13 ways: (1) striking both § 1409(c) and (a) entirely; (2) severing the one year 14 continuous presence provision in § 1409(c) and requiring every unwed citizen 15 parent to satisfy the more onerous ten year requirement if the other parent Statelessness in Support of Petitioner, Flores Villar v. United States, 131 S. Ct. 2312 (2010), 2010 WL 2569160. 18 Recall that § 1409(a) incorporates the physical presence requirement from § 1401(a)(7), which applies to married parents of mixed citizenship. 35 1 lacks citizenship; or (3) severing the ten year requirement in §§ 1409(a) and 2 1401(a)(7) and requiring every unwed citizen parent to satisfy the less 3 onerous one year continuous presence requirement if the other parent lacks 4 citizenship. In selecting among these three options, we look to the intent of 5 Congress in enacting the 1952 Act. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 6 479 U.S. 272, 292 n.31 (1987) (“[T]he Court must look to the intent of the . . . 7 legislature to determine whether to extend benefits or nullify the statute.”). 8 For reasons we explain below, we conclude that the third option is most 9 consistent with congressional intent. 10 We eliminate the first option with ease. The 1952 Act contains a 11 severance clause that provides: “If any particular provision of this Act, or the 12 application thereof to any person or circumstance, is held invalid, the 13 remainder of the Act . . . shall not be affected thereby.” 1952 Act § 406; cf. 14 Nguyen, 533 U.S. at 72 (“[S]everance is based on the assumption that 15 Congress would have intended the result.”). The clause makes clear that only 16 one of the provisions in § 1409, rather than both, should be severed as 17 constitutionally infirm. It also means that our holding, which relates only to 36 1 the application of these provisions to unmarried parents, should not be 2 construed to affect the physical presence requirement for married parents. 3 We reject the second option – contracting, as opposed to extending, the 4 right to derivative citizenship – with more circumspection. The Government 5 urges us to adopt this option, arguing that the alternative allows the 6 exception for unwed mothers to swallow the rule, thereby inflicting more 7 damage to the statute’s language and structure and reflecting a more radical 8 change than the 1952 Congress intended. This argument fails for two reasons. 9 First, the argument misunderstands our task, which is not to devise the 10 “cleanest” way to alter the wording and structure of the statute, but to 11 determine what result Congress intended in the event the combined statutory 12 provisions were deemed unconstitutional. Second, the Government’s 13 argument neglects the historical background against which Congress enacted 14 the relevant provisions. Although a close call, history does not convince us 15 that the members of Congress passing the 1952 Act would have viewed the 16 extension of the one year requirement as a more radical change than the 17 alternative, in which all unwed citizen parents must satisfy the ten year age 18 calibrated requirement if the other parent lacks citizenship. To the contrary, 37 1 the ten year requirement for fathers and married mothers imposed by 2 Congress in 1940 appears to have represented a significant departure from 3 long established historical practice. See Rogers, 401 U.S. at 823 26 (reviewing 4 the history of derivative citizenship statutes from the Act of March 26, 1790, 1 5 Stat. 103, through the 1952 Act and concluding that “for the most part, each 6 successive statute, as applied to a foreign born child of one United States 7 citizen parent, moved in a direction of leniency for the child”). From 1934 8 until the enactment of the 1940 Act, for example, women had the statutory 9 right to confer citizenship on their foreign born children and were required 10 merely to have resided in the United States for any duration prior to the 11 child’s birth. The same bare minimum requirement applied to men for the 12 vast majority of the time since the founding, from 1790 until 1940. See id.; 13 Weedin, 274 U.S. at 664 67; Act of May 24, 1934, ch. 344, § 1993, 48 Stat. 797; 14 1940 Act. Moreover, the 1952 Act’s addition of a one year continuous 15 physical presence requirement for unmarried citizen mothers represented a 16 relatively minor change in the baseline minimal residency requirement 17 applicable to all men and women prior to 1940. On the other hand, of course, 18 we recognize that the 1952 Congress, presumably with the benefit of this long 38 1 history, nevertheless decided to retain the ten year residency requirement. 2 Whether this related to the emergence of the United States as a world power 3 after World War II or an increasing number of children born of mixed 4 nationality parents, or some other set of factors, we cannot tell with 5 confidence. 6 Neither the text nor the legislative history of the 1952 Act is especially 7 helpful or clear on this point, and ultimately what tips the balance for us is 8 the binding precedent that cautions us to extend rather than contract benefits 9 in the face of ambiguous congressional intent. See, e.g., Westcott, 443 U.S. at 10 89 (“In previous cases involving equal protection challenges to underinclusive 11 federal benefits statutes, this Court has suggested that extension, rather than 12 nullification, is the proper course.” (citing Jimenez v. Weinberger, 417 U.S. 13 628, 637 38 (1974), and Frontiero v. Richardson, 411 U.S. 677, 691 n.25 (1973) 14 (plurality opinion))); Heckler, 465 U.S. at 738, 739 n.5; Weinberger, 420 U.S. at 15 641 42, 653; Soto Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 280 81 (2d 16 Cir. 1985). Indeed, we are unaware of a single case in which the Supreme 17 Court has contracted, rather than extended, benefits when curing an equal 18 protection violation through severance. 39 1 Lastly, the Government contends that, in giving Morales Santana the 2 relief he seeks, we are granting citizenship, which we lack the power to do. 3 This argument rests on a mistaken premise. Although courts have no power 4 to confer “citizenship on a basis other than that prescribed by Congress,” 5 Miller, 523 U.S. at 453 (Scalia, J., concurring), Morales Santana has not asked 6 us to confer citizenship, and we do not do so. Instead, Morales Santana asks 7 that we exercise our traditional remedial powers “so that the statute, free of 8 its constitutional defect, can operate to determine whether citizenship was 9 transmitted at birth.” Nguyen, 533 U.S. at 95 96 (O’Connor, J., dissenting) 10 (citing Miller, 523 U.S. at 488 89 (Breyer, J., dissenting)); cf. id. at 73 74 (Scalia, 11 J., concurring). In other words, if Morales Santana “were to prevail, the 12 judgment in [his] favor would confirm [his] pre existing citizenship rather 13 than grant [him] rights that [he] does not now possess.” Miller, 523 U.S. at 14 432 (opinion of Stevens, J.). Correcting the constitutional defect here would at 15 a minimum entail replacing the ten year physical presence requirement in 16 § 1401(a)(7) (and incorporated within § 1409(a)) with the one year continuous 17 presence requirement in § 1409(c).19 The alternative remedy suggested by the 19 When applied to unmarried parents, § 1401(a)(7) as modified would read: 40 1 Government – that all unwed parents be subject to the more onerous ten year 2 requirement – would prove no less controversial: we have no more power to 3 strip citizenship conferred by Congress than to confer it. Nor, finally, has 4 Congress authorized us to avoid the question. See 8 U.S.C. § 1252(b)(5)(A) 5 (“If the petitioner claims to be a national of the United States and the court of 6 appeals finds from the pleadings and affidavits that no genuine issue of 7 material fact about the petitioner’s nationality is presented, the court shall 8 decide the nationality claim.” (emphasis added)). Conforming the 9 immigration laws Congress enacted with the Constitution’s guarantee of 10 equal protection, we conclude that Morales Santana is a citizen as of his birth. a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a continuous period of one year: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph. (first emphasis added to reflect change). 41 CONCLUSION 1 2 For the foregoing reasons, we REVERSE the BIA’s decision and 3 REMAND for further proceedings consistent with this opinion. 42