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Morales

‐ Santana v. Sessions

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 “SUMMARY ORDER”). A PARTY CITING

TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 1

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2

Square, in the City of New York, on the 19 th day of December, two thousand 3

seventeen. 4

5

PRESENT: RAYMOND J. LOHIER, JR., 6

SUSAN L. CARNEY, 7

Circuit Judges, 8

JED S. RAKOFF, 9

District Judge .* 10

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐ 11

LUIS RAMON MORALES

‐ SANTANA, AKA 12

LUIS MORALES, 13

Petitioner

, 14

v. No. 11

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16

JEFFERSON B. SESSIONS III, UNITED STATES 17

ATTORNEY GENERAL, 18

Respondent. ** 19

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 20

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New

York, sitting by designation.

** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson

B. Sessions III is automatically substituted for former Attorney General Loretta E. Lynch

as Respondent.2 FOR PETITIONER: Stephen A. Broome, Jacob Waldman, 1

Ellyde Roko, Quinn Emanuel 2

Urquhart & Sullivan, LLP, New York, 3

NY. 4

5

FOR RESPONDENT: Stuart Delery, Acting Assistant 6

Attorney General, Stephen J. Flynn, 7

Assistant Director, Kathryn M. 8

McKinney, Imran R. Zaidi, 9

Attorneys, Office of Immigration 10

Litigation, U.S. Department of 11

Justice, Washington, DC. 12

13

On remand from the United States Supreme Court. 14

UPON DUE CONSIDERATION of this petition for review of a Board of 15

Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, 16

AND DECREED that the petition for review is DENIED. 17

Following our decision in Morales

‐ Santana v. Lynch, 804 F.3d 520 (2d Cir. 18

2015), the Government appealed to the United States Supreme Court. The 19

Supreme Court affirmed this Court’s judgment in part and reversed in part, 20

remanding the case for further proceedings. Sessions v. Morales

‐ Santana, 137 S. 21

Ct. 1678 (2017). The Supreme Court held that while “[t]he gender

‐ based 22

distinction infecting §§ 1401(a)(7) and 1409(a) and (c)

. . . violates the equal 23

protection principle,” extending favorable treatment would convert § 1409(c)’s 24

exception for unwed U.S.

‐ citizen mothers into the main rule displacing 253 §§ 1401(a)(7) and 1409(a). Id. at 1700–01. “Section 1401(a)(7)’s longer 1

physical

‐ presence requirement, applicable to a substantial majority of children 2

born abroad to one U.S.

‐ citizen parent and one foreign citizen parent, therefore, 3

must hold sway.” Id. at 1702. 4

In view of the Supreme Court’s decision, we agree with the BIA’s 5

determination that under the circumstances of this case, Morales

‐ Santana is not a 6

United States citizen. For the foregoing reasons, the petition for review is 7

DENIED. 8

FOR THE COURT: 9

Catherine O’Hagan Wolfe, Clerk of Court 10