Thomas v. Lynch

United States Court of Appeals
For the First Circuit

No. 15-1805

PIERRE THOMAS,

Petitioner,

v.

LORETTA E. LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Barron, and Stahl,
Circuit Judges.

Rhonda F. Gelfman, with whom The Law Offices of Rhonda F.
Gelfman, P.A., were on brief, for petitioner.
Linda Y. Cheng, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Civil Division, and Anthony P.
Nicastro, Acting Assistant Director, Office of Immigration
Litigation, were on brief, for respondent.

July 5, 2016
 BARRON, Circuit Judge. We must decide in this case

whether petitioner Pierre Thomas satisfied the applicable

statutory criteria for obtaining derivative citizenship in

consequence of his mother's naturalization. Those criteria were

set forth in the derivative citizenship statute that was in effect

at the time that Thomas was still a minor. Thomas concedes that

he is removable as an alien who has been convicted of an aggravated

felony if he did not satisfy those criteria. Because we conclude

that he did not satisfy them, we deny his petition.

I.

The following facts are not in dispute. Thomas was born

in Haiti and was lawfully admitted to the United States in 1986,

at the age of five, as a nonimmigrant visitor. He was authorized

to remain in the United States for six months, but he and his

parents remained in the country beyond that date. After his father

died in 1993, Thomas continued to live in the United States with

his mother for the remainder of his childhood.

At some point while Thomas was a child, his mother

obtained lawful permanent resident status. On July 31, 1995, when

Thomas was fourteen years old, Thomas's mother filed an I-817

Application for Voluntary Departure on Thomas's behalf under the

Family Unity Program.1 That application was approved on August

1 The Family Unity Program, as authorized by the Immigration
Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978 (Nov. 29,

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25, 1995, giving Thomas authorization to remain in the United

States for two years. Then, in 1997, Thomas's mother filed a Form

I-130 petition, pursuant to 8 U.S.C. § 1154(a)(1)(B)(i)(I), to

classify Thomas as the child of an alien lawfully admitted for

permanent residence. That petition was approved on October 7,

1997.

On May 18, 1999, Thomas's mother became a naturalized

United States citizen. Three days later, Thomas turned eighteen

years old. Thomas did not apply to become a lawful permanent

resident during that three-day period that followed his mother's

naturalization or at any other point. Instead, he continued living

in the United States without a lawful admission for permanent

residence.

In 2003, Thomas was convicted in Massachusetts state

court for armed robbery. Then, in 2012, the United States

initiated removal proceedings against Thomas pursuant to section

237(a)(2)(A)(iii) of the INA (8 U.S.C. § 1227(a)(2)(A)(iii)),

which provides that "[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable." Thomas

contested removal on the ground that he became a United States

citizen in 1999, by operation of the derivative citizenship statute

1990), "allow[ed] certain spouses and children of [legalized]
aliens . . . to work and to remain in the U.S. without fear of
deportation." 72 No. 8 Interpreter Releases 283.

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then in effect. The Immigration Judge ("IJ") assigned to Thomas's

case rejected that contention and, on October 17, 2012, ordered

him removed. The Board of Immigration Appeals ("BIA") affirmed

that decision on February 25, 2013, and Thomas was removed to Haiti

in April of that year.

Thomas's current petition is for review of the denial by

the BIA of his motion to reopen the proceedings against him.

Thomas made that motion after he was arrested on a charge of

illegal reentry upon his return to the United States in April 2015.

Because the motion was filed more than 90 days after the

BIA's 2013 removal order, the BIA denied his motion to reopen on

timeliness grounds. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing

that, subject to limited exceptions, a "motion to reopen shall be

filed within 90 days of the date of entry of a final administrative

order of removal"). On appeal, however, the government has

expressly disavowed reliance on the time bar in this case and has

urged us to reach the merits. We thus deem the government to have

waived any timeliness argument and will proceed to the merits of

Thomas's citizenship claim. See 8 U.S.C. § 1252(b)(5)(A).

II.

Thomas's petition hinges on the proper construction of

the derivative citizenship law that was in effect before Thomas

turned eighteen years old. That law, former section 321(a) of the

INA, provided that:

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 A child born outside of the United States of alien
parents . . . becomes a citizen of the United States
upon . . .

(2) The naturalization of the surviving parent if one of
the parents is deceased;

. . . if

(4) Such naturalization takes place while such child is
under the age of eighteen years; and

(5) Such child is residing in the United States pursuant
to a lawful admission for permanent residence at the
time of the naturalization of . . . the parent
naturalized under clause (2) . . . of this subsection,
or thereafter begins to reside permanently in the United
States while under the age of eighteen years.

8 U.S.C. § 1432(a) (1999), repealed by Child Citizenship Act of

2000, Pub. L. No. 106-395, § 103(a), 114 Stat. 1631, codified at

8 U.S.C. § 1431(a).2

Thomas and the government agree that Thomas's mother, as

his lone surviving parent, was naturalized while Thomas was under

2 The Child Citizenship Act of 2000 replaced the derivative
citizenship statutes then in effect with the following:

A child born outside of the United States automatically
becomes a citizen of the United States when all of the
following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the
United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the
legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.

8 U.S.C. § 1431(a).

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eighteen. The parties further agree that Thomas was not "residing

in the United States pursuant to a lawful admission for permanent

residence at the time of [his mother's] naturalization." The only

question we must address, therefore, is whether Thomas, upon his

mother's naturalization, "thereafter beg[an] to reside permanently

in the United States while under the age of eighteen years."

Under the BIA's interpretation of former section 321(a),

the answer is that Thomas clearly did not. The BIA has concluded

that "the phrase 'begins to reside permanently in the United States

while under the age of eighteen years,' is most reasonably

interpreted to mean that an alien must obtain the status of lawful

permanent resident while under the age of 18 years." Matter of

Nwozuzu, 24 I. & N. Dec. 609, 612 (BIA 2008). In other words,

according to the BIA, the latter clause of paragraph (5) in former

subsection 321(a) contains "a shorthand reference to the

requirement of the first clause." Id. at 614 n.5. Thus, as Thomas

concedes, Thomas's citizenship claim would fail under the BIA's

interpretation because he "was not lawfully admitted for permanent

residence prior to his 18th birthday" and thus never satisfied

either clause.

Thomas argues that we should reject the BIA's

interpretation of that section. He contends that we should join

the Second Circuit in concluding that the BIA's interpretation,

under which the second clause of former paragraph 321(a)(5) is

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merely a shorthand reference to the first clause, is contrary to

the plain language of the statute because the phrase "reside

permanently" in the second clause unambiguously means something

broader than "resid[e] . . . pursuant to a lawful admission for

permanent residence" in the first clause. See Nwozuzu v. Holder,

726 F.3d 323, 327 (2d Cir. 2013); but see United States v. Forey-

Quintero, 626 F.3d 1323, 1326-27 (11th Cir. 2010) (adopting the

BIA's interpretation).3

Thomas further contends that he satisfied the

requirements of that broader, second clause because he satisfied

the criteria for "residing permanently" that the Second Circuit

set forth in Nwozuzu. According to Nwozuzu, "'[b]egins to reside

permanently' does not require 'lawful permanent resident' status"

but merely requires "some objective official manifestation of the

child's permanent residence." 726 F.3d at 333.

In the end, as we will explain, Thomas cannot satisfy

the statutory criteria even under his preferred, broader reading

of "reside permanently."4 And that is because he offers no

3 The Ninth Circuit, construing the language of the clause
prior to the BIA's decision in Matter of Nwozuzu, concluded 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 v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008).
4 For this reason, we need not decide whether the BIA's
construction of former section 321(a) is entitled to Chevron
deference. Compare Nwozuzu, 726 F.3d at 326-27 (applying Chevron
in assessing the BIA's construction of former section 321(a)),

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explanation of how he can be said -- in light of the words

"thereafter begins" in the key clause -- to have done what he

needed to do by the time he needed to do it. But before explaining

our conclusion in that regard, we first pause to explain the

difficulty in construing the two words that are the focus of the

dispute between Thomas and the BIA.

III.

If one knew nothing else, it would not be altogether

surprising if the phrase "reside permanently" was, as the BIA

contends, just a shorthand for "resid[e] . . . pursuant to a lawful

admission for permanent residence." Those two words appear right

after the longer phrase, in the same section, and one certainly

might use those words colloquially as a shorthand description of

what came before.

But there are some contrary indications that point

towards Thomas's preferred reading. The phrase "reside

permanently" is not defined in the INA, but the phrase "lawfully

admitted for permanent residence" is. And the definition of that

with Minasyan v. Gonzales, 401 F.3d 1069, 1074 (9th Cir. 2005)
("Because the INA explicitly places the determination of
nationality claims solely in the hands of the courts . . . , we
are not required to give Chevron deference to the agency's
interpretation of the citizenship laws." (internal quotation marks
omitted)). We will assume, favorably to Thomas, that we owe the
BIA no deference.

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longer phrase includes "residing permanently" as a component part,

thus suggesting they are not synonyms.5

Similarly, the terms "permanent" and "residence" are

separately defined in the INA, each without reference to lawful

admission. "Permanent" is defined in the INA as "a relationship

of continuing or lasting nature, as distinguished from temporary,

but a 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). "Residence" is defined in the INA as "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." Id. § 1101(a)(33). Thus, the INA's separate definitions

of "residence" and "permanent" together arguably yield a

definition for "reside permanently" -- "to have as a principal,

actual dwelling place for a continuing or lasting period" -- that

makes no reference to lawful admission for permanent residence.

Moreover, if one looks elsewhere in the United States

Code, Congress has sometimes distinguished between "an alien

lawfully admitted for permanent residence" and one who is

5
"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).

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"otherwise permanently residing in the United States under color

of law." See, e.g., 42 U.S.C. § 1382c(a)(1)(B)(i) (specifying

that benefits under Title XVI of the Social Security Act may only

be paid to an "aged, blind, or disabled" individual who "is a

resident of the United States, and is either (I) a citizen or (II)

an alien lawfully admitted for permanent residence or otherwise

permanently residing in the United States under color of law");

id. § 602(a)(33) (replaced in 1997) ("A State plan for aid and

services to needy families with children must . . . provide that

in order for any individual to be considered a dependent

child, . . . such individual must be either (A) a citizen, or (B)

an alien lawfully admitted for permanent residence or otherwise

permanently residing in the United States under color of law").

Thus, for this reason, there are signs that "residing permanently"

might not be just a shorthand.

On the other hand, if "reside permanently" is read as

something broader than a shorthand reference to "resid[e] . . .

pursuant to a lawful admission for permanent residence," the

requirements for becoming a citizen at the time of the relevant

naturalization would be stricter than the requirements for

becoming a citizen after that naturalization. But it is not at

all clear why Congress would have intended that result. Indeed,

under the parallel section of the predecessor statute, the 1940

Nationality Act ("1940 Act"), the requirements for acquiring

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derivative citizenship at the time of the relevant naturalization

apparently were less strict than were the requirements for becoming

a citizen "thereafter."6

Similarly, a consideration of the adjacent section of

the INA, former section 320, also points against the broader

reading of "reside permanently" because of the strange disjuncture

that would otherwise arise. Former section 320 addressed how

aliens who were born abroad to one alien parent and one citizen

parent -- as opposed to aliens born abroad to two alien parents,

which former section 321 addressed -- could acquire derivative

citizenship.

Under the plain language of former section 320, aliens

born abroad to one alien parent and one citizen parent could not

acquire derivative citizenship without obtaining a lawful

admission for permanent residence.7 It is therefore hard to see

6 Under that statute, an alien would acquire derivative
citizenship simply by "residing in the United States" at the time
of the relevant naturalization, but, thereafter, needed to
"begin[] to reside permanently in the United States" (while under
the age of eighteen years). 76 Cong. Ch. 876 § 314(e), 54 Stat.
1137, 1145-46 (repealed 1952).
7 Former section 320 provided that an alien child born abroad
to one citizen parent and one alien parent

shall, if such alien parent is naturalized, become a
citizen of the United States, when . . .

(1) such naturalization takes place while such child is
under the age of eighteen years; and

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why Congress would have intended for aliens born abroad to two

alien parents to be able to acquire derivative citizenship without

obtaining such an admission. And yet, under Thomas's reading of

"reside permanently" in former section 321, one would have to

conclude that Congress did intend for that to be the case.8

(2) such child is residing in the United States pursuant
to a lawful admission for permanent residence at the
time of naturalization or thereafter and begins to
reside permanently in the United States while under the
age of eighteen years.

8 U.S.C. § 1431 (1994).

8 Even if "reside permanently" is not a shorthand, there may
be reason to doubt whether an alien can "reside permanently" in
the United States if he is here unlawfully (as Thomas was at the
relevant time) without at least some authorization from the
government to remain (which Thomas did not have). Thomas has
provided no authority for the proposition that an alien who is
present in the United States unlawfully and without such
authorization can nonetheless be "residing permanently" herein,
and we have found none. Cf. Holley v. Lavine, 553 F.2d 845, 849
(2d Cir. 1977) (determining that an alien who resided in the United
States illegally but possessed an official letter from the INS
stating that the agency did not contemplate enforcing her departure
at that time, was "permanently residing in the United States under
color of law" within the meaning of a regulation implementing the
Social Security Act); Sudomir v. McMahon, 767 F.2d 1456, 1462 (9th
Cir. 1985) (citation and internal quotation marks omitted)
(upholding as "permissible" the following administrative
interpretation of a statute referring to aliens "permanently
residing under color of law": "A residence may be 'permanent' where
the INS has permitted an alien to stay in the United States so
long as he is in a particular condition, even though circumstances
may change, and the alien may later lose his right to stay.").
But given that Congress has written statutes that include a
requirement that an alien be "permanently residing in the United
States under color of law," see, e.g., 42 U.S.C. §
1382c(a)(1)(B)(i)(II), it is possible that the words "reside
permanently" do not themselves impose an "under color of law"
requirement.

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 Nevertheless, we need not definitively resolve this

dispute over the correct construction of "reside permanently" in

former section 321(a)(5). No matter how those words are best

construed, we still must account for the words "thereafter begins"

in that subsection. And, as we next explain, Thomas's contention

clearly unravels in consequence of those words.

IV.

Because Thomas concedes that he was not residing in the

United States pursuant to a lawful admission for permanent

residence at the time of his mother's naturalization, he can only

prevail if he "thereafter beg[an] to reside permanently in the

United States while under the age of eighteen years." 8 U.S.C.

§ 1432(a)(5) (1999). But Thomas cannot show that he did so.

The record reveals that Thomas took no official action

with respect to his citizenship status in the three-day window

between his mother's naturalization and his eighteenth birthday.

Thomas never applied for lawful permanent resident status,9 and

the filings of both the I-130 and the I-817 were made prior to his

mother's naturalization. Moreover, the objective factors that

9 We note that the record shows that Thomas's mother had
numerous interactions with the immigration authorities and, in
fact, became a lawful permanent resident herself. And Thomas has
made no argument that he was in any way precluded from applying
for lawful permanent resident status or that he did not know how
to do so.

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might lead one to think he resided permanently in the United

States -- such as his years of residence and the presence of family

members in the country -- were all present before she was

naturalized (and "at the time of the naturalization").

Thus, even if we assume that Thomas "reside[d]

permanently" in the United States during the time period to which

the statute directs our attention, he "beg[an]" to do so before

his mother was naturalized and then never experienced any relevant

change in status or took any relevant action between the time of

her naturalization and his eighteenth birthday. Accordingly, it

is hard to see how, following his mother's naturalization, he can

be said to have "thereafter beg[un] to reside permanently."

Nor can we simply read "thereafter begins to reside

permanently" to mean "thereafter . . . reside[s] permanently."

Doing so would require us not only to ignore the word "begins" but

also to drop the word "to" and change "reside" to "resides," and

we are not in the business of rewriting statutes.

In addition to this obvious textual problem, such a

reading runs counter to even the Second Circuit's description of

the function of the second clause. The Nwozuzu Court explained

that the purpose of that second clause is to "address[] minors

who, at the time the [relevant] parent was naturalized, either

lived abroad or lived in the United States but had not been

'lawfully admitted for permanent residence'" and who therefore

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"did not derive citizenship automatically upon the parent's

naturalization." Nwozuzu, 726 F.3d at 329. But reading "begins"

out of the statute, while construing "reside permanently" as Thomas

asks us to, would lead to the conclusion that Thomas became a

citizen (essentially) automatically upon the naturalization of his

mother rather than upon some triggering event that occurred

"[]after" her naturalization.

Relatedly, reading "begins" out of the statute seems to

render the first clause of the paragraph superfluous if "reside

permanently" is not a shorthand, as it is hard to see how one who

is "residing . . . pursuant to a lawful admission for permanent

residence" is not also necessarily one who is "resid[ing]

permanently." Cf. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062

(9th Cir. 2008); Matter of Nwozuzu, 24 I. & N. Dec. at 614.10

10
To the extent one might think "begins" was simply a
meaningless redundancy in former section 321, that notion is belied
somewhat by the parallel section of the 1940 Act, which contained
the same basic structure as former section 321. As we have set
out above, that section, section 314(e) of the 1940 Act, provided
that a minor alien whose parent(s) naturalized would acquire
derivative citizenship if: "[he] is residing in the United States
at the time of the naturalization . . . or thereafter begins to
reside permanently in the United States while under the age of
eighteen years." 76 Cong. Ch. 876 § 314(e), 54 Stat. 1137, 1145-
46 (repealed 1952). Under that statutory language, no alien would
be in a position like Thomas is now, having arguably "beg[un]" to
reside permanently prior to the naturalization of his parent(s),
and lived in the United States continuously thereafter, but having
failed to acquire derivative citizenship under the first clause of
the section. Thus, there would have been no reason to read the
word "begins" out of section 314(e) of the 1940 Act, because that
word would not have barred from citizenship any alien who

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 Thomas makes no attempt to address the problems that the

words "thereafter begins" pose for his attempt to fit the facts of

his case into the statute. It is true that giving force to those

words could advantage aliens who start residing permanently in the

United States later over those who do so earlier. But that

arguably anomalous consequence arises only on a broad construction

of "reside permanently." If that phrase is instead construed as

a shorthand for "resid[e] . . . pursuant to a lawful admission for

permanent residence," then the statute provided no incentive for

aliens to delay the onset of their permanent residence.

In light of the problems with reading "begins" out of

former section 321(a)(5), and because the only argument we have

identified against giving force to "thereafter begins" seems to

support the proposition that "reside permanently" was a shorthand,

we conclude that Thomas did not satisfy the terms of the statute.

Accordingly, his claim to derivative citizenship fails.11

V.

For the reasons set forth above, we deny Thomas's

petition for review.

"reside[d] permanently" "[]after" the relevant naturalization
while under the age of eighteen years.
11Because we deny Thomas's petition on the merits, we do not
address the government's argument that Thomas is collaterally
estopped from claiming citizenship as a result of his November
2015 guilty plea to a charge of illegal reentry by a removed alien
(a plea that Thomas contends has since been withdrawn).

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