United States v. Connolly

06-3139-cr
United States of America v. Connolly

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________

August Term, 2007

(Submitted: June 18, 2008 Decided: December 4, 2008)

Docket No. 06-3139-cr

_______________

UNITED STATES OF AMERICA ,

Appellee,

—v.—

ODELL CONNOLLY ,

Defendant-Appellant,

_______________

Before:

STRAUB, RAGGI, Circuit Judges, SESSIONS,* District Judge

_______________

Defendant-Appellant Odell Connolly was found guilty of illegal reentry into the United
States as a convicted felon in violation of 8 U.S.C. § 1326(b)(2). Connolly argued that the
charge must be vacated because he had established the requisite showing for United States
citizenship under 8 U.S.C. § 1403 based on the fact that his biological father was a United States
citizen and a member of the Army Reserves at the time of Connolly’s birth in Panama. The
panel holds that an inactive reservist is not “employed by the United States government” for

*
The Honorable William K. Sessions III, Chief Judge, United States District Court for
the District of Vermont, sitting by designation.
purposes of 8 U.S.C. § 1403 under the plain meaning of the statutory language. Thus, even
assuming that Brewer fell within the definition of “father” under § 1403, the panel concludes that
Connolly cannot establish that he is a United States citizen under the statute.
_______________

DANIEL NOBEL, New York, New York

JOHN A. NATHANSON , Assistant United States Attorney (Benton J. Campbell, United States
Attorney and Emily Berger, Assistant United States Attorney, for the Eastern District of New
York, on the brief), Brooklyn, New York
_______________

SESSIONS, District Judge:

Defendant-Appellant Odell Connolly appeals from the judgment of the District Court for

the Eastern District of New York (Sandra L. Townes, Judge) entered on June 20, 2006, finding

him guilty of illegal reentry into the United States as an alien convicted of an aggravated felony

in violation of 8 U.S.C. § 1326(b)(2). Connolly argues on appeal, as he did before the District

Court, that the judgment must be vacated because he is a United States citizen under 8 U.S.C. §

1403. The District Court concluded that § 1403 does not confer citizenship upon Connolly for

two reasons. First, it held that Larry Brewer, Connolly’s biological father, did not qualify as

Connolly’s father for the purposes of § 1403. Second, it held that Brewer was not employed by

the United States government at the time of Connolly’s birth. We affirm the judgment of the

District Court solely on the latter ground.

BACKGROUND

The parties stipulated to the following relevant facts at the proceedings before the District

Court. Connolly was born in Panama on April 21, 1968. His mother, Norma Connolly, was at

the time a Panamanian citizen, but his father, Larry Brewer, was a United States citizen. Brewer

was drafted into the United States Army Reserves on April 29, 1966, and, after a period of

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training, posted to the 577th Artillery Brigade and stationed at Fort Sherman in the Panama

Canal Zone. Brewer remained in Panama on active duty until April 3, 1968. While in Panama,

Brewer and Norma Connolly had a relationship which culminated in Norma Connolly’s

pregnancy. Connolly’s paternity is uncontested; indeed, Brewer submitted a sworn affidavit to

the District Court acknowledging that his paternity of Connolly. Brewer and Norma Connolly

were never married. On April 3, 1968, Brewer was separated from active duty, transferred into

the Ready Reserves, and assigned to a command in St. Louis, Missouri. Eighteen days later,

Odell Connolly was born.

From April 1968 through June 1970, while Brewer was still a member of the reserves, the

Army neither ordered nor asked him to perform any duties or services. Brewer did not receive

any pay nor any other form of compensation from the Army or any other agency or unit of the

United States government. The Army maintained the authority to recall Brewer to active duty;

however, this authority was not exercised. Upon his return to Illinois in 1968, Brewer resumed

his prior employment with the Ford Motor Company full-time. In June 1970, Brewer transferred

voluntarily to the 425th Transportation Command in Forest Park, Illinois, and for the four

months that he was there, he participated in periodic drills and training. In October 1970, Brewer

transferred back to the St. Louis command; in April 1971, he was transferred to the Army

Standby Reserves; and in April 1972, Brewer was discharged from military service.

Connolly legally entered the United States in 1993. He was arrested on January 24, 1995,

and pled guilty to a drug-related felony on December 6, 1995. The Immigration and

Naturalization Service (“INS”) thereafter placed Connolly in deportation proceedings, and he

was ultimately deported in December 1998. At no point during the deportation proceedings did

3
Connolly assert his claim of United States citizenship. Connolly most recently reentered the

United States sometime after January 2002. He subsequently gained employment, first as a

medical assistant and then as an emergency medical technician. After a routine check, the

Department of Homeland Security1 discovered that Connolly appeared to be residing in the

United States and arranged for his arrest on April 28, 2005.

DISCUSSION

Connolly maintains that he is and has been a United States citizen since birth by force of

8 U.S.C. § 1403, a rarely adjudicated provision of immigration and nationality law. Section 1403

prescribes the following:

Any person born in the Republic of Panama on or after February 26, 1904, and
whether before or after the effective date of this chapter, whose father or mother or
both at the time of the birth of such person was or is a citizen of the United States
employed by the Government of the United States or by the Panama Railroad
Company, or its successor in title, is declared to be a citizen of the United States.

8 U.S.C. § 1403(b). The application of this provision to the specific facts of this case raises two

exegetic questions regarding the definitions of “father” and “employed.” We review the District

Court’s determination regarding the statute’s definitions of “father” and “employed by the United

States” de novo, because they are matters “of statutory interpretation.” Boykin v. KeyCorp, 521

F.3d 202, 207 (2d Cir. 2008).

The first question is whether the term “father” as used in § 1403 refers simply to a male

parent and therefore includes the biological father of a child born out of wedlock. The

1
The INS was abolished effective March 1, 2003, and its functions were split between
three bureaus in the Department of Homeland Security. The majority of the INS’s enforcement
functions were transferred to the Bureau of Immigration and Customs Enforcement. See
Homeland Security Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2178 (codified as
amended at 6 U.S.C. § 291).

4
government has proposed a more narrow and complex definition. Relying on an interpretation

letter apparently issued by the INS, Interpretation 303.1, the government argues that “father” as

used in this section must be read to exclude the father of a child born out of wedlock “unless the

child is legitimated in accordance with the law of the father’s domicile.” INS Interpretation

Letter 303.1, 2001 WL 1333855 (2001). The District Court concluded that Interpretation 303.1

was entitled to Chevron deference, despite the scant information available about the document

itself.2 United States v. Connolly, No. 05-cr-428, 2006 U.S. Dist. LEXIS 22956, at *10

(E.D.N.Y. Apr. 25, 2006). However, there are a number of reasons to question this conclusion.

Chevron requires that courts undertake a two-step inquiry when reviewing an agency’s

construction of a statute that comes within its purview. Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984). “First, always, is the question whether

Congress has directly spoken to the precise question at issue. If the intent of Congress is clear,

that is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. Only “if the statute is silent or ambiguous

2
Aside from its title, this document provides very little information about its genesis or
identity. While relying on it, the District Court provided no further information about what this
interpretation is, where it came from, where it is published, or when it was written. The
government provided a Westlaw cite for the document: 2001 WL 133855. On Westlaw, the
document is entitled: “United States Department of Justice, Immigration & Naturalization
Service Interpretation Letter: Interpretation 303.1.” Other than the 2001 date given to it by
Westlaw, the letter does not contain a date or any other publication information that would help
to identify how it came to exist. “Statutory interpretations contained in [agency] opinion letters,
as opposed to those arrived at after formal agency adjudication or notice-and-comment
rulemaking, are not binding authority, and do not command Chevron deference.” Barfield v.
N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 149 (2d Cir. 2008) (citations omitted) (noting that
“[n]evertheless, such agency letters represent ‘a body of experience and informed judgment to
which courts and litigants may properly resort for guidance.’”) (quoting Gualandi v. Adams, 385
F.3d 236, 243 (2d Cir. 2004)).

5
with respect to the specific issue,” should the reviewing court reach the second question, namely,

“whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843;

see also Puello v. BCIS, 511 F.3d 324, 327 (2d Cir. 2007) (“Well-established principles of

construction dictate that statutory analysis necessarily begins with the plain meaning of a law’s

text and, absent ambiguity, will generally end there.”). Moreover, an “administrative

implementation of a particular statutory provision qualifies for Chevron deference [only] when it

appears that Congress delegated authority to the agency generally to make rules carrying the

force of law, and that the agency interpretation claiming deference was promulgated in the

exercise of that authority.” United States v. Mead Corp, 533 U.S. 218, 226-27 (2001).

In this case, it is unclear whether the District Court addressed the first step of the inquiry.

Indeed, there appears to be little ambiguity in the language of § 1403. The statute uses the term

“father” without modification, restriction or exception. INS Interpretation 303.1 itself observed

that the precursor statute to § 1403 “makes no distinction between persons born in or out of

wedlock.” INS Interpretation Letter 303.1, 2001 WL 1333855. Nor is such a distinction drawn

anywhere in the legislative history.

In determining whether Congress has spoken clearly and directly to a question at issue,

we recently observed “that ‘statutory construction must begin with the language employed by

Congress and the assumption that the ordinary meaning of that language accurately expresses the

legislative purpose.’” Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en

banc) (quoting Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985)). “‘[W]e

begin with the understanding that Congress says in a statute what it means and means in a statute

what it says there.’” Id. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,

6
530 U.S. 1, 6 (2000)). In this case, the ordinary meaning of “father” is a male parent,3 and it is

the duty of the court to enforce the plain statutory language. See Hartford Underwriters Ins. Co.,

530 U.S. at 6.

Furthermore, the absence of language distinguishing children born out of wedlock does

not permit an inference of ambiguity in this case. Consideration of the broader statutory

framework makes this clear. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132-33 (2000) (“In determining whether Congress has specifically addressed the question at

issue, a reviewing court should not confine itself to examining a particular statutory provision in

isolation. . . . A court must . . . interpret the statute as a symmetrical and coherent regulatory

scheme.” (citation and internal quotation marks omitted)). Where Congress has wished to

distinguish fathers of children born out of wedlock in Title 8, it has not shied away from express

language to that effect. For purposes of subchapters I and II, of Chapter 12, Title 8, Congress has

expressly excluded fathers of children born out of wedlock from the definition of “parent,” “if

the father has disappeared or abandoned or deserted the child or if the father has in writing

irrevocably released the child for emigration and adoption.” 8 U.S.C. § 1101(b)(2). However,

with regard to subchapter III (which contains § 1403), Congress specifically established a much

broader definition of “father.” See 8 U.S.C. § 1101(c)(2) (providing that father as used in

subchapter III includes the deceased father of a posthumous child). Even within subchapter III,

where Congress has intended to modify the definition of “father” it has done so expressly, not by

3
The Oxford English Dictionary defines “father” as “[o]ne by whom a child is or has
been begotten, a male parent, the nearest male ancestor.” The lengthy historical Oxford English
Dictionary definition never once ties the word “father” to legitimacy. Oxford English Dictionary
(2d ed. 1989).

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implication. See 8 U.S.C. § 1409(a) (imposing additional requirements for grant of citizenship to

children born out of wedlock pursuant to select provisions of §§ 1401 and 1408). The

government argues that the absence of language excluding fathers of children born out of

wedlock must be read as a tacit endorsement of “the rule that an illegitimate child does not

acquire citizenship through a citizen father unless the child is legitimated in accordance with the

laws of the father’s domicile.” Connolly, 2006 U.S. Dist. LEXIS 22956, at *10. We are

persuaded that the intricate legislative scheme summarized above belies such an interpretation.

Even if § 1403 were ambiguous, the interpretation advanced by the government would

raise a number of difficulties. In particular, it is unclear what level of deference Interpretation

303.1 merits in light of Mead Corp., 533 U.S. at 227-28, 232, and Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944) (“The weight [accorded to an administrative] judgment in a particular case

will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all those factors which give it power to

persuade, if lacking power to control.”). There are, at the very least, significant questions

regarding the thoroughness and validity of the reasoning embraced in Interpretation 303.1 as well

as its consistency with later pronouncements.

First, the sources upon which Interpretation 303.1 relies for its asserted rule are of limited

relevance. Interpretation 303.1 specifically relies on a number of pre-1940 statements issued by

the Department of Justice. See INS Interpretation Letter 303.1, n.9, 2001 WL 1333855 (citing 39

Op. Atty. Gen. 290 (1939); 39 Op. Atty. Gen. 556 (1937); 32 Op. Atty. Gen. 162 (1920)). These

opinions were adopted by the Department of Justice in reference to a distinct provision of

immigration law, namely section 1993 of the Revised Statutes of the United States (1878), as

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amended by the Act of May 24, 1934, Pub. L. No. 73-250, § 1, 48 Stat. 797 (1934). Not only

was section 1993 a much broader provision than the provision at issue in this case, but, at the

time, Congress had not addressed the issue of whether a child born out of wedlock could qualify

for derivative citizenship. See de los Santos v. INS, 525 F. Supp. 655, 666-67 (S.D.N.Y. 1981)

(“The first provisions in the United States nationality laws that dealt with illegitimate children

were enacted as part of the Nationality Act of 1940.”) In fact, Attorney General Murphy in the

1939 opinion cited by the INS, regarding whether “foreign-born illegitimate children of

American mothers may be regarded as American citizens,” where he notes that the applicable

statutory regulations do not apply to children born out of wedlock, also writes “that resort to

Congress for additional legislation is desirable.”4 As detailed above, Congress has since 1940

expressly addressed the issue of children born out of wedlock.

In addition, a more recent pronouncement issued by the Department of Justice addresses

Interpretation 303.1 and arrives at the contrary conclusion. See Genco Op. No. 91-30, 1991 WL

1185141 (1991). In this opinion, the General Counsel’s Office of the Department of Justice

notes that under the 1946 Panamanian constitution, “all children are deemed to be legitimate

from birth.” Id. Therefore, in order to establish citizenship under § 1403, the opinion concludes

that a person need only establish the parentage requirements and that no proof of legitimation is

required. Id.

However, we conclude that we need not, and thus do not, here decide whether any

deference is owed under Chevron and the related case law to the narrow, complex, and arguably

4
Attorney General Murphy also notes that Ng Suey Hi v. Weedin, 21 F.2d 801 (9th Cir.
1927), a case cited by Interpretation 303.1, actually questioned the validity of the rule proposed
by the agency. 39 Op. Atty. Gen. 290; see also de los Santos, 525 F. Supp. at 666.

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archaic definition of “father” proposed by the government in this case.5 Connolly’s petition must

be denied regardless, because, as the District Court observed, he cannot establish that his father

was “employed by the Government of the United States” at the time of his birth for purposes of

§ 1403.

Although Brewer was separated from active duty eighteen days before Connolly was

born, Connolly argues that Brewer remained employed by the government based on his transfer

to the Ready Reserves. Congress has not provided a definition of “employed” for purposes of §

1403 nor for any related immigration or nationality provisions.6 In the absence of any express

definition, we find that Brewer was not “employed by the Government of the United States” at

the time of Connolly’s birth under the plain meaning of the statute. 8 U.S.C. § 1403(b); see

Hartford Underwriters Ins. Co.,.530 U.S. at 6. The term “employ” commonly means “to use or

engage the services of” or “to provide with a job that pays wages or a salary.” Merriam-

Webster’s Collegiate Dictionary 378 (10th ed. 2000). The Supreme Court has also explained

5
There is still another reason for proceeding with caution: were we to find that Congress
intended § 1403 to apply only to legitimate children or children legitimated in accordance with
the laws of the father’s domicile, such a rule could potentially implicate a serious constitutional
question. See Tuan Anh Nguyen v. INS, 533 U.S. 53, 70-71 (2001) (finding that the imposition of
an extra but “minimal” burden in 8 U.S.C. § 1409(a)(4) on a father who seeks to confer
citizenship on his child born out of wedlock was not unconstitutional because the law serves an
important governmental interest, and the means are substantially related to the ends; noting that
“[o]nly the least onerous of the three options provided for in § 1409(a)(4) must be satisfied”).
6
In Title 5, the United States Code provides that a “Reserve of the armed forces who is
not on active duty . . . is deemed not an employee . . . [of] the United States.” 5 U.S.C. § 2105(d).
Although this provision was passed for a distinctly different purpose, it lends credence to the
government’s argument that Congress “employed” in § 1403 requires more of a relationship than
the one Brewer had. Cf. United States v. Dillard, 214 F.3d 88, 103 n.17 (2d Cir. 2000)
(explaining that statutes and rules created in different contexts and for different purposes may
have different meanings, notwithstanding the use of similar words).

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that where Congress has not provided a helpful definition for “employee,” we should assume

Congress had in mind “the conventional master-servant relationship as understood by

common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992)

(noting that when Congress has not provided a helpful definition for “employee,” we should

assume Congress had in mind “the conventional master-servant relationship as understood by

common-law agency doctrine”); accord Salamon v. Our Lady of Victory Hosp., 514 F.3d 217,

226 (2d Cir. 2008). Under this doctrine, “[w]hether a hired person is an employee under the

common law of agency depends on a fact-specific analysis of thirteen factors.” Salamon, 514

F.3d at 226. Those factors are:

the skill required; the source of the instrumentalities and tools; the location of the work;
the duration of the relationship between the parties; whether the hiring party has the right
to assign additional projects to the hired party; the extent of the hired party’s discretion
over when and how long to work; the method of payment; the hired party’s role in hiring
and paying assistants; whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and the tax
treatment of the hired party. No one of these factors is determinative.

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989) (citations omitted).

We find that after Brewer was separated from active duty and at the time Connolly was

born, Brewer’s services were not engaged by the government. On the one hand, a few of the

factors that we examine to determine if a master-servant relationship existed support Brewer: To

be a member of the United States Army, even as a member of the reserves, Brewer had to have

certain skills which he gained through training by the Army. In addition, the United States Army

Reserves had control over the duration of Brewer’s time as a reservist. Moreover, the

government could call him up to active duty or require him to attend training -- and this use

would have been part of the regular business of the Army.

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 However, the factors tending to show that Brewer was not “employed” for purposes of

the statute far outweigh these considerations. Most importantly, after transferring to inactive

duty, Brewer left Panama and returned to the job he had prior to being drafted. Until June 1970,

Brewer did not participate in training, he was not paid a salary, nor did he receive any other

compensation during that time. Brewer did not require any “instrumentalities and tools,” see id.

at 751, to complete his duties, because he had no duties. Nothing in the statute governing

reserves provides that the Army Reserves could dictate what employment Brewer took up after

being separated from active duty or where he could live. In sum, the Army Reserves had the

right to “engage” Brewer’s services, but it did not do so. Needless to say, both the Reserves and

reservists serve a necessary and valuable purpose, see 10 U.S.C. § 10102; however, this fact, in

and of itself, is not sufficient to constitute an employment relationship under the ordinary

meaning of the statutory language.

For the foregoing reasons, Connolly’s conviction for illegal reentry in violation of 8

U.S.C. § 1326(b)(2) is AFFIRMED.

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