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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