no. 14-60378 detained alien in the united states … · for the fifth circuit _____ evaristo...
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No. 14-60378 DETAINED ALIEN
___________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________________________
EVARISTO GONZALEZ GONZALEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
___________________________________________
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Agency No. A087-230-079 ___________________________________________
BRIEF OF RESPONDENT
___________________________________________
STUART F. DELERY Assistant Attorney General Civil Division BLAIR T. O’CONNOR
RACHEL L. BROWNING Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation
Assistant Director Office of Immigration Litigation
P.O. Box 878 Ben Franklin Station Washington, D.C. 20044
July 18, 2014
Attorneys for Respondent
TABLE OF CONTENTS
STATEMENT OF JURISDICTION.......................................................................... 1
COUNTER-STATEMENT OF THE ISSUE ............................................................ 2
STATEMENT OF THE CASE AND THE RELEVANT FACTS ........................... 3
I. Background and Removal Proceedings ................................................ 3
II. The Immigration Judge’s Decision ....................................................... 8
III. Mr. Gonzalez’s Appeal to the Board ..................................................... 9
IV. The Board’s Decision ..........................................................................10
SUMMARY OF THE ARGUMENT ......................................................................12
ARGUMENT ...........................................................................................................13
I. Scope and Standard of Review ............................................................13
II. The Board Properly Determined That Mr. Gonzalez Did Not Derive Citizenship Under Former INA § 321(a) Based on His Father’s Naturalization Because he Did Not Acquire Lawful Permanent Resident Status While Under Eighteen Years of Age. .....................................................................................................14
A. The Board’s Construction of Former INA § 321(a), as Examined in Matter of Nwozuzu, is Correct. ...........................14
B. The Court Should Decline to Follow the Second Circuit’s Decision in Nwozuzu v. Holder, as the Court’s Reasoning Misconstrues Legislative History, Obviates Statutory Language, and Ignores Supreme Court Precedent Requiring Strict Interpretations of Citizenship Statutes. .....................................................................................19
CONCLUSION ........................................................................................................28
i
TABLE OF AUTHORITIES
CASES Agosto v. INS,
436 U.S. 748 (1978) .............................................................................................27 Ahmed v. Gonzales,
447 F.3d 433 (5th Cir. 2006) ...............................................................................13 Alwan v. Ashcroft,
388 F.3d 507 (5th Cir. 2004) ........................................................................ 13, 27 Ashton v. Gonzales,
431 F.3d 95 (2d Cir. 2005) ............................................................................ 19, 23 Berenyi v. Dist. Dir., INS,
385 U.S. 630 (1967) .............................................................................................24 Bowen v. Massachusetts,
487 U.S. 879 (1988) .............................................................................................21 Bustamante-Barrera v. Gonzales,
447 F.3d 388 (5th Cir. 2006) ........................................................................ 14, 24 Fedorenko v. United States,
449 U.S. 490 (1981) .............................................................................................24 INS v. Pangilinan,
486 U.S. 875 (1988) .............................................................................................24 Kaplan v. Tod,
267 U.S. 228 (1925) .............................................................................................21 Nwozuzu v. Holder,
726 F.3d 323 (2d Cir. 2013) ................................................................... 12, passim
ii
Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir. 2002) ...............................................................................13
Romero-Ruiz v. Mukasey,
538 F.3d 1057 (9th Cir. 2008) ............................................................... 16, passim United States v. Cervantes-Nava,
281 F.3d 501 (5th Cir. 2002) ...............................................................................24 United States v. Elrawy,
448 F.3d 309 (5th Cir. 2006) ...............................................................................26 United States v. Forey-Quintero,
626 F.3d 1323 (11th Cir. 2010) ............................................................. 16, passim United States v. Ginsberg,
243 U.S. 472 (1917) .............................................................................................24 United States v. Juarez, 672 F.3d 381 (5th Cir. 2012) ..............................................................................19 Vasquez de Alcantar v. Holder,
645 F.3d 1097 (9th Cir. 2011) .............................................................................26
ADMINISTRATIVE DECISIONS Matter of C-,
8 I&N Dec. 421 (BIA 1959) ................................................................................22 Matter of M-,
3 I&N Dec. 815 (BIA 1949) ................................................................................22 Matter of Nwozuzu,
24 I&N Dec. 609 (BIA 2008) .................................................................. 9, passim Matter of Perez-Andrade,
19 I&N Dec. 433 (BIA 1987) ..............................................................................11
iii
Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001) ................................................................................ 8
STATUTES
Immigration and Nationality Act of 1952, as amended:
Section 101(a)(20), 8 U.S.C. § 1101(a)(20) .........................................................................................15 Section 101(a)(31), 8 U.S.C. § 1101(a)(31) .........................................................................................15 Section 101(a)(33), 8 U.S.C. § 1101(a)(33) .........................................................................................15 Section 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) ...................................................................................... 4 Section 212(h), 8 U.S.C. § 1182(h) .............................................................................................6, 8 Section 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) ................................................................................... 4 Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ................................................................................. 4 Section 242(a)(1), 8 U.S.C. § 1252(a)(1) ............................................................................................. 2 Section 242(b)(1), 8 U.S.C. § 1252(b)(1) ............................................................................................ 2 Section 242(b)(2), 8 U.S.C. § 1252(b)(2) ............................................................................................ 2
iv
Section 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B) .....................................................................................27 Section 245(i), 8 U.S.C. § 1255(i) ................................................................................................26 Section 276(a), 8 U.S.C. § 1326(a) ...............................................................................................17 Section 276(b)(2), 8 U.S.C. § 1326(b)(2) ..........................................................................................17 Section 320, 8 U.S.C. § 1431 ................................................................................................5, 11 Section 320(a)(3), 8 U.S.C. § 1431(a)(3) ...............................................................................................22 Section 321, 8 U.S.C. § 1432 ........................................................................................ 2, passim Section 321(a), 8 U.S.C. § 1432(a) ................................................................................... 5, passim Section 321(a)(5), 8 U.S.C. § 1432(a)(5) ............................................................................. 14, passim
REGULATIONS
8 C.F.R. § 1003.1(b)(3) .............................................................................................. 2 8 C.F.R. § 1003.29 ...................................................................................................12 8 C.F.R. § 1240.6 .....................................................................................................12
v
LEGISLATION AND LEGISLATIVE MATERIAL
Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30, 2000) ............................................................................... 2 Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002) ................................................................................10 S. Rep. No. 81-1515, 80th Cong., 1st Sess ....................................................... 21, 23
vi
No. 14-60378 DETAINED ALIEN
___________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
___________________________________________
EVARISTO GONZALEZ GONZALEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
___________________________________________
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Agency No. A087-230-079 ___________________________________________
BRIEF OF RESPONDENT
___________________________________________
STATEMENT OF JURISDICTION
This is an immigration case in which Petitioner Evaristo Gonzalez Gonzalez
(“Mr. Gonzalez”) seeks review of the order of the Board of Immigration Appeals
(“Board”) issued May 20, 2014. Certified Record on Appeal (“ROA”) 7-8. The
Board’s decision dismissed Mr. Gonzalez’s appeal of the Immigration Judge’s
decision ordering him removed after determining that Mr. Gonzalez had not
derived citizenship through his father’s naturalization under former section 321 of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1432 (repealed by
section 103(a), Title I, Child Citizenship Act of 2000, Pub. L. No. 106-395, 114
Stat. 1631 (Oct. 30, 2000), effective date Feb. 27, 2001). Id.; see ROA.45-49. The
Board’s jurisdiction arose under 8 C.F.R. § 1003.1(b)(3), which grants the Board
appellate jurisdiction over decisions of immigration judges in removal
proceedings.
The Court’s jurisdiction arises under INA § 242(a)(1), 8 U.S.C.
§ 1252(a)(1), which confers exclusive jurisdiction upon the Courts of Appeals to
review final orders of removal. Mr. Gonzalez filed this timely petition for review
on May 28, 2014, within thirty days of the Board’s decision. See INA
§ 242(b)(1), 8 U.S.C. § 1252(b)(1). Venue is proper in this Court because Mr.
Gonzalez’s removal proceedings were completed in El Paso, Texas, which is
within this judicial circuit. See INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).
COUNTER-STATEMENT OF THE ISSUE
Whether Mr. Gonzalez failed to derive United States citizenship based on
former INA § 321(a) by virtue of his father’s naturalization in 1999, where Mr.
2
Gonzalez was not lawfully admitted for permanent residence prior to the age of
eighteen.
STATEMENT OF THE CASE AND THE RELEVANT FACTS I. Background and Removal Proceedings
Mr. Gonzalez was born in Veracruz, Mexico, in 1985. ROA.47, 166-67.
His parents divorced in 1986. ROA.47. He entered the United States without
inspection (and, thus, without any lawful immigration status) for the first time in
1992, when he was seven years old, and thereafter lived with his father. Id. Prior
to turning eighteen, Mr. Gonzalez did not gain any legal status in the United States.
His father became a naturalized United States Citizen on January 14, 1999,
when Mr. Gonzalez was fourteen years old. Id. Mr. Gonzalez’s father filed an
immediate relative visa petition (Form I-130) on his behalf on June 10, 1999.
ROA.215. The petition was approved on March 25, 2005, when petitioner was
nineteen years old. Id. According to the legal memorandum Mr. Gonzalez
submitted to the Immigration Judge, he did not invoke the approved petition and
seek to adjust his status to that of a lawful permanent resident (“LPR”) until July
24, 2008, when he was twenty-two years old. ROA.198. He was admitted to the
United States at Albuquerque, New Mexico, as an LPR, on April 8, 2009.
ROA.180-81, 268. This was the first time Mr. Gonzalez had lawful immigration
3
status in the United States. On March 18, 2011, Mr. Gonzalez was convicted,
pursuant to a guilty plea, in the District Court, County of San Juan, New Mexico,
of a violation of New Mexico Statutes Annotated § 30-09-11(F), for the offense of
Criminal Sexual Penetration in the Third Degree, a felony, for which he received a
sentence of three years’ imprisonment. ROA.188-90.
On May 20, 2013, the Department of Homeland Security (“DHS”)
commenced removal proceedings by filing a Notice to Appear (“NTA”), charging
Mr. Gonzalez with removability under INA § 237(a)(2)(A)(i), 8 U.S.C.
§ 1227(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude
committed within five years after admission for which a sentence of one year or
longer may be imposed, and under INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony offense, as
defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (a crime of violence).
ROA.268-70.
On August 8, 2013, Mr. Gonzalez appeared in removal proceedings in El
Paso, Texas, and, through counsel, admitted the allegations contained in the NTA
regarding his admission to the United States as a lawful permanent resident and his
criminal conviction and sentence. ROA.112, 268. He denied the allegations that
he was not a citizen of the United States and was a native and citizen of Mexico.
4
Id. Counsel for Mr. Gonzalez stated that Mr. Gonzalez “might have derived
citizenship” through his father’s naturalization and indicated that he had filed an
application for a certificate of citizenship (Form N-600) with U.S. Citizenship and
Immigration Services (“USCIS”). ROA.113. The Immigration Judge continued
the hearing to await the adjudication of Mr. Gonzalez’s application by USCIS.
ROA.114-16.
On September 10, 2013, Mr. Gonzalez filed a motion to terminate his
removal proceedings, arguing that he had derived United States Citizenship
through his father under former INA § 321(a), 8 U.S.C. § 1432(a). ROA.156-58.
DHS opposed Mr. Gonzalez’s motion to terminate, arguing that Mr. Gonzalez had
not derived citizenship by virtue of his father’s naturalization, either under the
current Child Citizenship Act (INA § 320, 8 U.S.C. § 1431) or former INA § 321,
8 U.S.C. § 1432. ROA.149-54.
On November 21, 2013, Mr. Gonzalez attended a hearing regarding his
denial of alienage. ROA.124-32. During the hearing, counsel for Mr. Gonzalez
requested an additional continuance to await a response to his previously-
submitted Freedom of Information Act (“FOIA”) request. ROA.127. The DHS
attorney stated that she was opposed to an additional continuance, noting that the
Immigration Judge had indicated at the prior hearing that he would grant no further
5
continuances with respect to the issue of Mr. Gonzalez’s alleged citizenship. Id.
In addition, the DHS attorney asserted that the government had already stated its
position in its opposition to the motion to terminate that Mr. Gonzalez did not have
a viable claim to United States citizenship. ROA.127-28.
The Immigration Judge considered the evidence submitted, verifying with
Mr. Gonzalez that he had been born in Mexico in 1985, that his father had
naturalized in 1999, and that Mr. Gonzalez had become a lawful permanent
resident in April 2009, when he was twenty-three years old. ROA.128. The
Immigration Judge concluded that, because Mr. Gonzalez had not become a lawful
permanent resident until he was twenty-three years old, he had not fulfilled all the
conditions necessary to derive citizenship from his father’s naturalization. Id. The
Immigration Judge thus concluded that Mr. Gonzalez did not have a claim for
citizenship and that the charges that he was not a citizen of the United States and
was a citizen and national of Mexico should be sustained. ROA.129.
In response, counsel for Mr. Gonzalez requested a continuance for the
purpose of filing an application for readjustment of status (essentially seeking to
become an LPR again) and a INA § 212(h) waiver of inadmissibility in connection
with the readjustment application. ROA.129. The Immigration Judge granted the
request and assigned Mr. Gonzalez a due date of December 17, 2013 to file his
6
applications. ROA.130. Counsel for Mr. Gonzalez also asked for further
clarification of whether the Immigration Judge had denied the citizenship claim
based on former INA § 321 or based on the current law, and the Immigration Judge
confirmed that he had denied his claim to citizenship on both bases. ROA.131.
On December 16, 2013, Mr. Gonzalez submitted a motion to reconsider his
prior motion to terminate proceedings, reiterating his argument that he had derived
citizenship pursuant to former INA § 321(a), 8 U.S.C. § 1432(a), because his father
had naturalized while Mr. Gonzalez was a minor and because he began to
permanently reside in the United States while still a minor. ROA.196-200. At the
following hearing, held on December 17, 2013, counsel for Mr. Gonzalez asserted
that, because Mr. Gonzalez had been “residing [in the United States] permanently”
with his father at the time of his father’s naturalization in 1999, he had derived
citizenship under former INA § 321, 8 U.S.C. § 1432. ROA.134-35. DHS
reiterated its position that Mr. Gonzalez did not qualify for citizenship based on
either the former or current law. ROA.135. The Immigration Judge instructed
DHS counsel to file a response to Mr. Gonzalez’s motion to reconsider and
informed both parties that the case would be reset for another master calendar
hearing. ROA.135-36. When the Immigration Judge asked counsel for Mr.
Gonzalez whether he still intended to file an adjustment application in conjunction
7
with a § 212(h) waiver of inadmissibility, counsel indicated that Mr. Gonzalez only
“want[ed] to go forward on citizenship.” ROA.136.
DHS subsequently filed its opposition to Mr. Gonzalez’s motion to
reconsider, restating its position that he did not meet the requirements of derivative
citizenship as outlined in former INA § 321, 8 U.S.C. § 1432, or under the current
law. ROA.194-95. DHS noted that the Immigration Judge had already addressed
Mr. Gonzalez’s citizenship argument at the November 21, 2013, hearing, and that
Mr. Gonzalez had not presented any new evidence that had not already been
considered by the Immigration Judge. ROA.194-95.
II. The Immigration Judge’s Decision
The Immigration Judge denied Mr. Gonzalez’s motions to reconsider and
terminate proceedings, sustained both charges of removability, and ordered his
removal to Mexico in a written decision issued January 22, 2014. ROA.45-49.
The Immigration Judge first explained that, in determining whether an individual
had derived citizenship through a parent’s naturalization, the law in effect when the
last material condition for derivative citizenship had been met was controlling.
ROA.46 (citing Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001)).
Analyzing Mr. Gonzalez’s claim under former INA § 321, the Immigration Judge
then concluded that, in accordance with the Board’s decision in Matter of
8
Nwozuzu, 24 I&N Dec. 609 (BIA 2008), Mr. Gonzalez had not derived citizenship
through his father’s naturalization because he had not acquired lawful permanent
resident status while he was under the age of eighteen years. ROA.48-49. The
Immigration Judge rejected Mr. Gonzalez’s argument that he had “reside[d]
permanently” in the United States from the time of his arrival when he was seven
years old, referring to the Board’s conclusion that the phrase “begins to reside
permanently” required the individual to be residing in the United States in lawful
permanent resident status. ROA.48 (citing Matter of Nwozuzu, supra). Based on
the foregoing, the Immigration Judge denied Mr. Gonzalez’s motions to reconsider
and terminate based on his claim of United States citizenship under former INA
§ 321(a), 8 U.S.C. § 1432(a). ROA.49. The Immigration Judge sustained the
charges of removability and, noting that Mr. Gonzalez had not applied for any
relief from removal, ordered him removed to Mexico. Id.
III. Mr. Gonzalez’s Appeal to the Board Mr. Gonzalez filed an appeal of the Immigration Judge’s decision with the
Board on February 18, 2014, ROA.32-40, and an administrative appellate brief on
April 3, 2014. ROA.14-20. Mr. Gonzalez first asserted that the Immigration
Judge should have granted him a continuance to allow him to await the response to
his FOIA request, as he needed the additional documentary evidence to establish
9
his citizenship. ROA.15-16, 19. He then argued that he qualified for derivative
citizenship under former INA § 321(a), 8 U.S.C. § 1432(a), because he had
“garnered some ‘official objective manifestation’ of [an] intent to reside
permanently” in the United States after his father’s naturalization.” ROA.18. Mr.
Gonzalez asserted that, under INA § 321(a), 8 U.S.C. § 1432(a), a child could
derive citizenship through a naturalized parent as long as he was residing
permanently in the United States, “irrespective of whether he had been lawfully
admitted for permanent residence before turning eighteen[].” Id. He further
averred that Congress had intended for the phrases “‘lawful admission for
permanent residence’ and ‘reside permanently’ to mean different things” in order
to “preserve the family unit and to keep families intact.” ROA.18-19. Mr.
Gonzalez also argued that he qualified for derivative citizenship because, under the
Child Status Protection Act, Pub. L No. 107-208, 116 Stat. 927 (2002) (“CSPA”),
he was considered a “minor” when he adjusted his status to that of a lawful
permanent resident. ROA.19.
IV. The Board’s Decision
The Board dismissed Mr. Gonzalez’s appeal in a written decision issued
May 20, 2014. ROA.7-8. Applying de novo review, the Board affirmed the
Immigration Judge’s determination that Mr. Gonzalez did not derive citizenship
10
under prior INA § 321(a), 8 U.S.C. § 1432(a), because he had not acquired LPR
status while he was under the age of eighteen. ROA.7-8 (citing Matter of
Nwozuzu, supra). The Board specifically noted that Mr. Gonzalez “[had] not
claim[ed] that he [had] acquired his lawful permanent resident status prior to
turning [eighteen],” and that he “[had] not acquire[ed] lawful permanent resident
status prior to . . . the date on which former section 321 was repealed.” ROA.8.
The Board also concluded that Mr. Gonzalez did not qualify for derivative
citizenship under INA § 320, 8 U.S.C. § 1431, because that provision required him
to have resided in the United States pursuant to a lawful admission for permanent
residence while under the age of eighteen. Id.
Lastly, the Board dismissed Mr. Gonzalez’s appeal of the Immigration
Judge’s decision denying his request for a continuance to allow him additional
time to research his citizenship claim through his FOIA request. ROA.8. The
Board observed that Mr. Gonzalez, having acknowledged that he did not acquire
LPR status prior to his eighteenth birthday, had not shown good cause warranting a
continuance because he could not demonstrate that he had derived citizenship,
regardless of the documents that might be discovered through his FOIA request.
Id. (citing Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987); 8 C.F.R.
11
§§ 1003.29, 1240.6). In a footnote, the Board further rejected Mr. Gonzalez’s
claim that he had derived citizenship under the CSPA, noting that the statute “[did]
not apply to the cases of those persons claiming to have derived citizenship
through a parent.” ROA.8, n.1. Accordingly, the Board dismissed Mr. Gonzalez’s
appeal and this petition for review followed.
SUMMARY OF THE ARGUMENT
The Court should deny the petition for review, as the Board’s interpretation
of former INA § 321(a), requiring an alien to have acquired lawful permanent
resident status while under the age of eighteen in order to derive citizenship from a
naturalized parent is correct. The Board’s construction of the statute is consistent
with the statutory context and history of derivative citizenship, as well as with the
reasoning of the Ninth and Eleventh Circuit Courts of Appeals. Respondent
acknowledges that the Second Circuit Court of Appeals has rejected the Board’s
interpretation in Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013), but submits that
Nwozuzu was wrongly decided, insofar as it misconstrues the relevant legislative
history, obviates the statutory language, and ignores Supreme Court precedent
requiring strict interpretations of statutory provisions regarding citizenship.
Furthermore, Nwozuzu is distinguishable, because the alien in that case lawfully
entered the United States as a derivative beneficiary of his parents’ student visas,
12
and therefore had lawful status at some point prior turning eighteen, whereas Mr.
Gonzalez entered illegally and had no lawful status prior to his eighteenth birthday.
In this case, because there is no factual dispute that Mr. Gonzalez did not
acquire the status of an alien lawfully admitted for permanent residence while he
was under the age of eighteen, the Board reasonably determined that, by law, he
did not derive United States citizenship through his father’s naturalization in 1999.
Accordingly, the Court need not transfer Mr. Gonzalez’s case to the U.S. District
Court for fact-finding on the issue of his alleged citizenship, and it should not
disturb the Board’s decision.
ARGUMENT I. Scope and Standard of Review
Under most circumstances, when the Board affirms the Immigration Judge’s
conclusions and relies on some of the reasons set forth in his decision, the Court
reviews the Board’s decision, as well as that of the Immigration Judge to the extent
that it impacted the Board’s judgment. See Ahmed v. Gonzales, 447 F.3d 433, 437
(5th Cir. 2006); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
A nationality claim is a purely legal question that this Court reviews de
novo. Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004). Citizenship statutes
should be narrowly construed, as it is a petitioner’s burden to establish that he
13
meets all of the statutory requirements for citizenship. Bustamante-Barrera v.
Gonzales, 447 F.3d 388, 394-95 (5th Cir. 2006).
II. The Board Properly Determined That Mr. Gonzalez Did Not Derive Citizenship Under Former INA § 321(a) Based on His Father’s Naturalization Because he Did Not Acquire Lawful Permanent Resident Status While Under Eighteen Years of Age.
A. The Board’s Construction of Former INA § 321(a), as Examined
in Matter of Nwozuzu, is Correct.
Former Section 321(a) provides, in relevant part, that, in order to derive
United States citizenship from the naturalization of an alien parent, a foreign-born
child must, among other things:
resid[e] in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized . . . or thereafter begin[] to reside permanently in the United States while under the age of eighteen years.
8 U.S.C. § 1432(a)(5) (repealed) (emphasis added). In Matter of Nwozuzu, the
Board concluded that the phrase “begins to reside permanently in the United States
while under the age of eighteen years” meant that the alien must have acquired
LPR status while under the age of eighteen. 24 I&N Dec. at 612-16. In support of
this interpretation, the Board referred to the definitions for “permanent” and
“residence” in the INA,1 and determined that the concept of “residing
1 Section 101(a)(31) of the INA states that the term “permanent” means “a relationship of continuing or lasting nature, as distinguished from temporary, but a
14
permanently” included the implied requirement that the residence be lawful, as an
alien could not reside in the United States permanently if such residence was not
lawful. Id. at 612-13. In addition, the Board noted that this interpretation was
bolstered by the similarity between the phrase “begins to reside permanently” in
former INA § 321(a), 8 U.S.C. § 1432(a), and the definition of “lawfully admitted
for permanent residence” in INA § 101(a)(20), 8 U.S.C. § 1101(a)(20).2 Id. at 613-
14. Finally, the Board explained that the second clause of the provision was not
surplusage, because the phrase “clarifie[d] that an alien [did] not have to be a
lawful permanent resident at the time his or her parent naturalize[d] to qualify for
derivative citizenship . . . .” Id. at 614. Rather, “as long as the alien [was]
admitted as a lawful permanent resident before he or she turn[ed] eighteen,
citizenship may be derived from a naturalized parent,” even if the parent
relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.” 8 U.S.C. § 1101(a)(31). Section 101(a)(33) of the INA states that the term “residence” means “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101(a)(33). 2 Section 101(a)(20) of the INA states that the term “lawfully admitted for permanent residence” means “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20) (emphasis added).
15
naturalized while the alien child was outside the United States. Id. Therefore, the
Board concluded that the second clause was “not surplusage [because it] is
necessary to explain the time by which the lawful permanent residence requirement
of section 321(a)(5) must be satisfied.” Id. In the present case, the Board properly
applied the reasoning of Matter of Nwozuzu and concluded that, because Mr.
Gonzalez did not acquire LPR status while he was under the age of eighteen years,
he could not qualify for derivative citizenship under former INA § 321(a)(5), 8
U.S.C. § 1432(a)(5). ROA.7-8.
Notably, the Ninth and Eleventh Circuit Courts of Appeals have also
interpreted the phrase “begins to reside permanently in the United States while
under the age of eighteen years” to require an alien to have acquired LPR status in
order to derive citizenship from a naturalized parent. See United States v. Forey-
Quintero, 626 F.3d 1323, 1326-27 (11th Cir. 2010); Romero-Ruiz v. Mukasey, 538
F.3d 1057, l062-63 (9th Cir. 2008). In reaching its decision, the Ninth Circuit held
that, “in order to obtain the benefits of derivative citizenship, a petitioner must not
only establish permanent residence, but also demonstrate that he was residing in
some lawful status.” Romero-Ruiz, 538 F.3d at 1062. The court explained that:
A plain reading of the statute evidences the requirement that the child be residing pursuant to lawful admission either at the time of the parent’s naturalization or at some subsequent time [after the naturalization] while under the age of [eighteen]. The phrase “or thereafter begins to reside
16
permanently” alters only the timing of the residence requirement, not the requirement of legal residence.
Id. The court rejected the petitioner’s assertion that an individual could meet the
statute’s requirements merely by residing in the United States (with or without
legal status) at the time of the naturalization, noting that this interpretation “would
render the first clause – requiring legal permanent residence – superfluous.” Id.
Because the petitioner already was residing in the United States at the time of his
mother’s naturalization but had not been lawfully admitted as a permanent
resident, the Ninth Circuit agreed with the Board that the petitioner could not
qualify for derivative citizenship under former INA § 321(a), 8 U.S.C.
§ 1432(a). Id. at 1063.
In Forey-Quintero, the Eleventh Circuit noted that it would defer to the
Board’s “three-member decision” in Nwozuzu if the Court were reviewing that
decision directly. Forey-Quintero, 626 F.3d at 1326 n.3.3 The Court nevertheless
agreed that the phrase “‘reside permanently’” meant that “a dwelling place [could
3 In Forey-Quintero, the Eleventh Circuit heard an appeal from the United States District Court for the Northern District of Georgia, addressing the issue of whether the appellant was a derivative citizen under former INA § 321(a)(5), 8 U.S.C. § 1432(a)(5), for purposes of determining whether he had been properly convicted under 8 U.S.C. § 1326(a) and (b)(2) of being an alien who, after previously being removed from the United States, had been found to be in the United States without having obtained permission to reenter. See Forey-Quintero, 626 F.3d at 1324-25.
17
not] be ‘permanent’ under the immigration laws if it [was] unauthorized,’” and that
“requiring anything less than the status of lawful permanent resident would
essentially render the first clause of subsection [five] ‘mere surplusage.’” Id. at
1327 (quoting Matter of Nwozuzu, 24 I&N Dec. at 613) (alterations added).
In Mr. Gonzalez’s case, there is no dispute that he did not have any lawful
immigration status prior to turning eighteen, and that he entered the United States
without inspection. ROA.8, 47, 128. Interpreting the statutory subsection as he
suggests would have the perverse effect of essentially “negat[ing] the lawful
permanent resident requirement of the first clause,” Matter of Nwozuzu, 24 I&N
Dec. at 614, because any alien who is not a lawful permanent resident at the time
of the qualifying parent’s naturalization would only need to demonstrate “some
lesser form of residence [whether lawful or not] . . . before the alien reached the
age of [eighteen],” id., combined with some evidence of an intent (whether
subjective or objective under Mr. Gonzalez’s interpretation) to reside here
permanently, in order to automatically derive United States citizenship. As the
Board properly found, this could not have been Congress’s intent. Id.; see also
Forey-Quintero, 626 F.3d at 1327; Romero-Ruiz, 538 F.3d at 1062-63. Therefore,
the Court should not disturb the agency’s proper determination that Mr. Gonzalez
18
failed to qualify for derivative citizenship under former INA § 321(a), 8 U.S.C. §
1432(a).
B. The Court Should Decline to Follow the Second Circuit’s Decision in Nwozuzu v. Holder, as the Court’s Reasoning Misconstrues Legislative History, Obviates Statutory Language, and Ignores Supreme Court Precedent Requiring Strict Interpretations of Citizenship Statutes.
In support of his assertion that he was not required to obtain LPR status
before turning eighteen in order to derive citizenship through his father under prior
INA § 321(a)(5), 8 U.S.C. § 1432(a)(5), Mr. Gonzalez relies on the decision of the
U.S. Court of Appeals for the Second Circuit in Nwozuzu v. Holder, supra, which
overruled the Board’s precedent decision in Matter of Nwozuzu, insofar as Second
Circuit law is concerned.4 See Pet. Br. at 12-15, 20-24. Respondent submits that
4 Mr. Gonzalez also cites United States v. Juarez, 672 F.3d 381 (5th Cir. 2012), where this Court’s considered this statutory provision within the context of a claim of ineffective assistance of counsel. Pet. Br. at 6, 25. In Juarez, however, this Court noted that it had not previously interpreted former INA § 321(a)(5), 8 U.S.C. § 1432(a)(5), and it specifically declined to do so with respect to the defendant’s ineffective assistance claim. 672 F.3d at 387. The Court’s decision in Juarez merely held that, at the time of the defendant’s guilty plea in 2002, he might have had a “plausible” derivative citizenship claim as a defense, and that his counsel should have at least evaluated the issue before discarding it, not fail to consider it at all when the governing Circuit Court had not addressed the issue. See Juarez, 672 F.3d at 389-90 (citing, inter alia Ashton v. Gonzales, 431 F.3d 95, 98 (2d 2006)). Notably, at the time of the defendant’s guilty plea in Juarez, neither the Board’s decision in Matter of Nwozuzu, nor the Ninth Circuit’s decision in Romero-Ruiz and the Eleventh Circuit’s decision in Forey-Quintero had been decided.
19
the Second Circuit’s analysis is not persuasive authority for several reasons. First,
in concluding that it was unnecessary for the petitioner to obtain lawful permanent
residence in order to “begin[] residing permanently in the United States,” the
Second Circuit relied primarily on Congress’s express inclusion of such a
requirement in the first clause of former INA § 321(a)(5), 8 U.S.C. § 1432(a)(5),
and the omission of a similar requirement in the second. See Nwozuzu, 726 F.3d
at 327-28. The court’s conclusion, however, failed to take into account the entire
history of the statute. The court recounted how the provision originated from a
1790 statute, noting that, prior to 1907, the law was unclear as to when a child
living abroad at the time of his parent’s naturalization would derive citizenship and
be deemed a citizen. See id. at 329-30. The court further noted that the law
enacted in 1907 created the language at issue in this case, declaring that citizenship
“‘shall begin at the time such minor child begins to reside permanently in the
United States.’” Id. (quoting the Citizenship Act of 1907, Ch. 2534, § 5, 34 Stat.
1228, 1229). As the court observed, Congress “did not . . . significantly alter” this
language when enacting former INA § 321(a)(5), 8 U.S.C. § 1432(a)(5), in 1952,
see Nwozuzu, 726 F.3d at 331, even while it added the express lawful permanent
residency requirement for children who were present in the United States at the
time of the parents’ naturalizations. The second clause of INA § 321(a)(5), 8
20
U.S.C. § 1432(a)(5), thus originated amid concerns about children who began to
permanently reside in the United States after their parents naturalized, not
individuals like Mr. Gonzalez, who entered the United States without inspection
prior to his father’s naturalization.
Contrary to the conclusions drawn by the Second Circuit, as well as the
interpretation urged by Mr. Gonzalez, the statute’s history underscores the need for
an individual’s residence in the United States to be lawful under the second clause
of former Section 321(a)(5) in order to derive citizenship. In its analysis of the
direct predecessor of the current statute, the United States Supreme Court – using
the very language of former section 321(a)(5) – declared that an individual denied
lawful admission “never ha[d] begun to reside permanently in the United States
. . . .” Kaplan v. Tod, 267 U.S. 228, 230 (1925). Congress’s continued use of this
phrase shows that it agreed with the existing judicial interpretation of the phrase.
See Bowen v. Massachusetts, 487 U.S. 879, 892, 896, 900-01 (1988) (noting “the
well-settled presumption that Congress understands the state of existing law when
it legislates”). Indeed, the Senate Report on the enactment of the Immigration and
Nationality Act in 1952 explicitly noted that “[l]awful permanent residence has
always been a prerequisite to derivative citizenship.” S. Rep. No. 81-1515, at 707
(1950), available at http://www.ilw.com/immigrationdaily/news/2008,0701-
21
senatereport81-1515part4of5.pdf; see also Matter of M-, 3 I&N Dec. 815, 816
(BIA 1949) (noting that a “lawful admission for permanent residence [was]
required in order for [a minor alien] to establish that she derived citizenship” from
her parent under the immigration laws in existence in 1936). Furthermore, in the
successor version of the statute, Congress has reiterated the requirement of lawful
permanent residence. See INA § 320(a)(3), 8 U.S.C. § 1431(a)(3) (maintaining a
“lawfully admitted for permanent residence” criterion for all foreign-born children
to derive citizenship based on their parents’ naturalizations). All of this supports
the Board’s conclusion, contrary to the Second Circuit’s, that Congress’s use of
different terminology in the two clauses of former 8 U.S.C. § 1432(a)(5) was a
direct result of the terminology used in the predecessor statutes, which consistently
reflected a requirement of lawful permanent residence for all minors whose parents
had naturalized in order to derive citizenship. See Matter of Nwozuzu, 24 I&N
Dec. at 614-15 (noting cases that reviewed the predecessor provisions to the former
8 U.S.C. § 1432(a)(5) that required, “at the very least, an alien . . . to be lawfully
admitted to this country before he or she could be considered to be dwelling or
residing here permanently”); Matter of C-, 8 I&N Dec. 421, 422 (BIA 1959)
(“Until one is admitted in conformity with the immigration laws, no rights of
citizenship can be acquired.”); see also id. (“Lawful permanent residence has
22
always been a prerequisite to derivative citizenship.”) (citing S. Rep. No. 81-1515,
at 707 (1950)).
Second, the court’s and Mr. Gonzalez’s construction of the second clause of
the provision undermines and renders superfluous the express lawful permanent
residence requirement set forth in the provision’s first clause. See Matter of
Nwozuzu, 24 I&N Dec. at 614; cf. Romero-Ruiz, 538 F.3d at 1062 (recognizing
the problem of rendering the first clause superfluous); Forey-Quintero, 626 F.3d at
1327 (same). As noted previously, Mr. Gonzalez entered the United States without
inspection and was unlawfully present in the United States before his father’s
naturalization. ROA.8, 47, 128. By allowing individuals in Mr. Gonzalez’s
situation to derive citizenship merely by creating (under his construction) any
intent to permanently reside in the United States, or (under the Second Circuit’s
construction) an “official objective manifestation” of an intent to permanently
reside after the qualifying parent naturalizes, and without having to legalize their
unlawful presence, Mr. Gonzalez’s and the Second Circuit’s interpretation obviates
the first clause of former INA § 321(a). Pet. Br. at 12, 14 n.9; Nwozuzu, 726 F.3d
at 328-29 (quoting Ashton v. Gonzales, 431 F.3d 95, 99 (2d Cir. 2005)).
Finally, in reaching its decision, the Second Circuit disregarded Supreme
Court decisions requiring strict interpretation of citizenship statutes. The court
23
properly stated that “doubts should be resolved in favor of the United States and
against the claimant,” Nwozuzu, 726 F.3d at 332 (internal quotations and citations
omitted), but failed to consider the important policies underlying the rule of strict
construction. In fact, “[a] [p]etitioner has the burden of proving that he qualifies
for naturalization, and he must do so in the face of the Supreme Court’s mandate
that [the Courts] resolve all doubts ‘in favor of the United States and against’ those
seeking citizenship.” Bustamante-Barrera, 447 F.3d at 394-95 (quoting Berenyi v.
Dist. Dir., INS, 385 U.S. 630, 637 (1967)). Indeed, it is the Constitution and the
democratically elected branches of government that define this country’s citizenry:
An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. INS v. Pangilinan, 486 U.S. 875, 884 (1988) (quoting United States v.
Ginsberg, 243 U.S. 472, 474 (1917)); accord Fedorenko v. United States, 449 U.S.
490, 507 (1981); see also United States v. Cervantes-Nava, 281 F.3d 501, 503 (5th
Cir. 2002) (“Any right to citizenship must be granted by Congress . . . .”). Narrow
construction of citizenship statutes not only assures that Congress’s naturalization
authority is not usurped, but also reduces the chance for conflicts in interpretation
among the courts and the need for litigation where (as here) bright-line rules result.
24
Certainly, adopting an “official objective manifestation of intent to reside
permanently in the United States” standard as the Second Circuit has done, or any
subjective intent standard as Mr. Gonzalez proposes, as the test for satisfying the
second clause of former 8 U.S.C. § 1432(a)(5) is going to lead to a myriad of
interpretations in both the administrative and federal courts. But an interpretation
that both clauses require a residence pursuant to a lawful permanent admission
prior to the age of eighteen is consistent with the overall statutory language, the
statutory history, the interpretation of both the Board and two of three circuit
courts to have addressed it, and the well-settled principle of strict interpretation of
citizenship statutes.
As a final point, it is worth noting that Nwozuzu is factually distinguishable
from this case, because, unlike Mr. Gonzalez, the petitioner in that case had been
admitted to the United States as a derivative of his parents’ F-1 nonimmigrant
student visas and thus had lawful status prior to turning eighteen years of age. See
Nwozuzu, 726 F.3d at 325. He also filed an application for adjustment of status
prior to his eighteenth birthday, which contributed significantly to the Court’s
finding of an “objective official manifestation” of the alien’s intent to reside
25
permanently in the United States.5 Id. at 334. Ultimately, though, because the
petitioner had been lawfully admitted to the United States, the Second Circuit
distinguished his situation from those of the petitioners in other cases where the
courts had determined that petitioners had not been “residing permanently”
because they had been “expressly excluded from admission.” Id. at 330 n.6
(internal quotation marks and citations omitted). In this regard, Mr. Gonzalez’s
case is more akin to that of the alien in Romero-Ruiz, who initially entered without
inspection and whose only admission was unlawfully obtained through a false
claim of United States citizenship. 538 F.3d at 1060.
Accordingly, because the Board properly determined that, as a matter of law,
Mr. Gonzalez did not derive citizenship from his father’s naturalization in 1999,
this Court should not disturb the Board’s correct construction of statute and its
denial of Mr. Gonzalez’s claim to derivative citizenship. In addition, because there
5 Notably, the approval of Mr. Gonzalez’s I-130 petition did not confer any legal status upon him, but was merely the first step in obtaining his LPR status. See Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1102-03 (9th Cir. 2011) (“[W]e have never held that mere filing for LPR status constitutes [an] admission.”) (citing, inter alia United States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006)). There were two ways Mr. Gonzalez could have obtained LPR status itself. First, he could have gone abroad, applied for and obtained an immigrant visa, and returned to the United States as an immigrant. Second, he could have applied for adjustment of status from within the United States under 8 U.S.C. § 1255(i). Mr. Gonzalez apparently chose the second option, ROA.47, but he did not apply for adjustment until 2008, well after he had turned eighteen.
26
is no genuine issue of material fact regarding Mr. Gonzalez’s nationality, the Court
need not transfer his case to the U.S. District Court for a new hearing on his
nationality claim.6 See NA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B); Agosto v.
INS, 436 U.S. 748, 753-54 (1978); Alwan, 388 F.3d at 510 & n.1.
6 In the event that the Court were to disagree with the Board’s interpretation of the lawful permanent resident requirement of former 8 U.S.C. § 1432(a)(5), then the government agrees that the case should be transferred to the district court for further fact-finding on the other statutory requirements of former § 1432(a), including the requirement of whether Mr. Gonzalez’s father had sole legal custody of him at the time he naturalized. The government specifically does not concede this point.
27
CONCLUSION
For the foregoing reasons, the Court should deny the petition for review.
Respectfully submitted,
STUART F. DELERY Assistant Attorney General Civil Division BLAIR O’CONNOR Senior Litigation Counsel
/s/ Rachel Browning RACHEL BROWNING Trial Attorney
U.S. Department of Justice Civil Division Office of Immigration Litigation
Ben Franklin Station, P.O. Box 878 Washington, D.C. 20044-0878 (202) 532-4526 [email protected]
Dated: July 18, 2014 Attorneys for Respondent
28
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(B)(i) and (C), counsel for
Respondent hereby certifies that the attached answering brief complies with
the type-volume limitation because the brief uses proportionately-spaced,
14-point Times New Roman typeface, and contains 6, 109 words. Counsel
for Respondent has used Microsoft Word to prepare this brief. The
undersigned certifies that the text of the electronic brief is identical to the
text in the paper copies filed with the Court. The undersigned also certifies
that Respondent’s Brief was automatically scanned with Microsoft Forefront
Endpoint Protection version 2.1.1116.0, and no viruses were detected.
/s/ Rachel Browning
RACHEL BROWNING Trial Attorney
U.S. Department of Justice Civil Division Office of Immigration Litigation
Ben Franklin Station, P.O. Box 878 Washington, D.C. 20044-0878 (202) 532-4526 [email protected]
Dated: July 18, 2014 Attorney for Respondent
CERTIFICATE OF SERVICE
I hereby certify that, on July 18, 2014, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals
for the Fifth Circuit by using the appellate CM/ECF system. I certify that all
participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
/s/ Rachel Browning
RACHEL BROWNING Trial Attorney
U.S. Department of Justice Civil Division Office of Immigration Litigation
Ben Franklin Station, P.O. Box 878 Washington, D.C. 20044-0878 (202) 532-4526 [email protected]