     11-1252-ag
     Morales-Santana v. Holder

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT
                                             SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
     IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
     A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 16th day of July, two thousand thirteen.
 4
 5           PRESENT: RAYMOND J. LOHIER, JR.,
 6                            SUSAN L. CARNEY,
 7                                                     Circuit Judges,
                                                   *
 8                            JED S. RAKOFF,
 9                                                     District Judge.
10           ------------------------------------------------------------------
11
12           LUIS RAMON MORALES-SANTANA, aka Luis Morales
13
14                                            Petitioner,
15
16                                    v.                                          No. 11-1252-ag
17
18           ERIC H. HOLDER, JR., United States Attorney
19           General,
20
21                                            Respondent.
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23
24
25           FOR PETITIONER:                  STEPHEN A. BROOME, Quinn Emanuel Urquhart &
26                                            Sullivan, LLP, New York, NY.


             *
               The Honorable Jed S. Rakoff, of the United States District Court for the Southern
     District of New York, sitting by designation.
 1
 2          FOR RESPONDENT:              IMRAN RAZA ZAIDI, Trial Attorney (Kathryn M.
 3                                       McKinney, Attorney, Stephen J. Flynn, Assistant
 4                                       Director, and Stuart Delery, Acting Assistant Attorney
 5                                       General, on the brief), Civil Division, U.S. Department
 6                                       of Justice, Washington, DC.
 7
 8          UPON DUE CONSIDERATION of this petition for review of a Board of
 9   Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND
10   DECREED that the proceedings are TRANSFERRED to the United States District Court
11   for the Western District of New York to determine whether petitioner’s father would
12   satisfy the one-year continuous presence requirement of 8 U.S.C. § 1409(c), were it
13   applicable to him.
14          Petitioner Luis Ramon Morales-Santana seeks review of the March 3, 2011
15   decision of the BIA denying his motion to reopen. In re Luis Ramon Morales-Santana,
16   No. A034 200 190 (B.I.A. Mar. 3, 2011). We assume the parties’ familiarity with the
17   underlying facts and procedural history of the case, to which we refer only as necessary to
18   explain our decision.
19          Morales-Santana argues that he is not removable because he is a United States
20   citizen, having derived citizenship from his father. Morales-Santana’s father was born in
21   Puerto Rico on March 19, 1900, and presumably acquired United States citizenship in
22   1917 pursuant to the Jones Act of 1917, 39 Stat. 951 (codified at 8 U.S.C. § 1402).
23   Morales v. Holder, 351 F. App’x 554, 556 (2d Cir. 2009). However, to determine
24   whether he transmitted his citizenship to Morales-Santana, we apply the law of derivative
25   citizenship at the time Morales-Santana was born, in 1962. See Ashton v. Gonzales, 431
26   F.3d 95, 97 (2d Cir. 2005) (applying the law in effect at the time the last requirement for
27   derivative citizenship is fulfilled). The law then in effect requires that the citizen father of
28   a child born abroad be physically present in the United States or one of its outlying
29   possessions for a period of ten years prior to the child’s birth, five of which must be after
30   the parent’s fourteenth birthday. See 82 Pub. L. No. 414, § 301(a)(7) (codified at 8
                                                    2
 1   U.S.C. § 1401(a)(7)(1952)). However, unwed citizen mothers need only have been
 2   physically present in the United States or one of its outlying possessions for “a continuous
 3   period of one year” in order to transmit citizenship to their children. See id. § 309(c)
 4   (codified at 8 U.S.C. § 1409(c)(1952)).

 5          As relevant here, Morales-Santana argues that the difference in the requirements
 6   for unwed citizen mothers and citizen fathers violates the Equal Protection clause of the
 7   Fifth Amendment. He asks us to remedy this alleged constitutional violation by
 8   extending the one-year continuous physical presence requirement to unmarried citizen
 9   fathers, and argues that his father would satisfy this requirement, even if he does not
10   fulfill the more stringent requirement applicable to fathers.

11          Nothing in the record definitively answers the question whether Morales-Santana’s
12   father would satisfy the one-year continuous presence requirement of 8 U.S.C. § 1409(c).
13   Title 8, Section 1252(b)(5)(B) provides:

14                 If the petitioner claims to be a national of the United States and the court of
15                 appeals finds that a genuine issue of material fact about the petitioner's
16                 nationality is presented, the court shall transfer the proceeding to the district
17                 court of the United States for the judicial district in which the petitioner
18                 resides for a new hearing on the nationality claim and a decision on that
19                 claim as if an action had been brought in the district court under section
20                 2201 of title 28.
21
22   Because there is a question as to whether Morales-Santana’s father would satisfy the one-
23   year continuous presence requirement applicable to unwed mothers that he seeks as a
24   remedy, and in order to avoid reaching a constitutional question that might not prove
25   determinative of Morales-Santana’s claim, pursuant to 8 U.S.C. § 1252(b)(5)(B), we
26   TRANSFER the proceedings to the United States District Court for the Western District
27   of New York, where Morales-Santana currently resides, to resolve the following
28   questions: Whether Morales-Santana’s father had the nationality of the United States at
29   the time of Morales-Santana’s birth, and whether Morales-Santana’s father had been

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 1   physically present in the United States or one of its outlying possessions for a continuous
 2   period of one year prior to Morales-Santana’s birth.

 3          Pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d
 4   Cir. 1994), the parties are to inform the Clerk of the Court by letter within fourteen days
 5   of the District Court’s decision if either side wishes to continue this appeal. After
 6   jurisdiction is restored, this panel will resume consideration of the case.
 7

 8                                             FOR THE COURT:
 9                                             Catherine O’Hagan Wolfe, Clerk of Court
10
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