Cheneau v. Garland

• Citation: 997 F.3d 916
• Decision Date: 13 May 2021
• Docket Number: No. 15-70636,15-70636
• Parties: Monssef CHENEAU, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

997 F.3d 916

Monssef CHENEAU, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 15-70636

United States Court of Appeals, Ninth Circuit.

Submitted En Banc March 22, 2021^* San Francisco, California

Filed May 13, 2021

THOMAS, Chief Judge:

We voted to rehear this case en banc to consider the requirements for two different pathways by which a child of a naturalized citizen parent can derive U.S. citizenship under former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000). Under the first pathway, a child "residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent" is eligible for derivative citizenship; under the second, a child is eligible who "thereafter begins to reside permanently in the United States while under the age of eighteen years." Id.

A three-judge panel of this court previously interpreted this statute, holding that both pathways required the child to have lawful permanent resident status. See Romero-Ruiz v. Mukasey , 538 F.3d 1057, 1062–63 (9th Cir. 2008). In re-examining Romero-Ruiz , we now conclude that the phrase "or thereafter begins to reside permanently in the United States," 8 U.S.C. § 1432(a)(5), does not require that the child have necessarily been granted lawful permanent residency, although the child must have demonstrated an objective official manifestation of permanent residence. With this clarification, we remand this case to its three-judge panel so that the panel may, in its discretion, apply the revised rule to this case.

I

The facts of the case are detailed in the panel opinion, and we need not recount them here in detail. See Cheneau v. Barr , 971 F.3d 965, 966–67 (9th Cir. 2020). In brief, Cheneau entered the United States lawfully at age thirteen under a non-immigrant student visa. Id. at 966. His mother was naturalized in 1999, and he applied for adjustment of status to lawful permanent resident at age fifteen, in 2000. Id. Due to an administrative error, he was not granted adjustment of status until 2003, after he had turned eighteen. Id. at 966–67. Years later, the Department of Homeland Security initiated removal proceedings after Cheneau's convictions for various theft offenses. Id. at 967. Cheneau moved to terminate, asserting a claim of derivative citizenship. Id.

The three-judge panel held, in a per curiam opinion, that under Romero-Ruiz the panel was required to hold that Cheneau was not a derivative citizen under either pathway of § 1432(a)(5). See Cheneau , 971 F.3d at 969–70. The applicable statute provides that a child born outside the United States may obtain derivative citizenship on the basis of a parent's naturalization if:

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 ... or thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432(a)(5) (1994) (emphasis added).¹ The Cheneau panel concluded that, since "under [ Romero-Ruiz ] ‘lawful admission for permanent residence’ is required by both provisions of clause (5)," Cheneau was not eligible for derivative citizenship. 971 F.3d at 969.

However, the entire panel joined a concurring opinion, authored by Judge Bennett, encouraging this Court to revisit Romero-Ruiz . The concurrence noted that "Congress chose two different phrases—one that refers to status while the other refers to actual residence"—that "have been used in other sections of the [Immigration and Nationality Act ("INA")] to mean different things." Cheneau , 971 F.3d at 977 (Bennett, J., concurring). The concurrence urged reexamination because Romero-Ruiz "was phrased too broadly and established a rule that, although understandable in the circumstances presented in that case, leads to an incorrect result when applied here." Id. at 970.

II

In Romero-Ruiz , we initially considered the construction of § 1432(a)(5), addressing "the question of whether an immigrant who did not have lawful permanent resident status at the time of his mother's naturalization is eligible for derivative citizenship." 538 F.3d at 1060. Born in Mexico in 1981, Romero-Ruiz entered the United States without admission in 1985, lived in the United States without lawful status, and applied for adjustment of status at age seventeen after his mother naturalized. Id. However, while his application was pending, he left the country. Id. We held that both pathways required that a child have lawful permanent resident status as a prerequisite to obtaining derivative citizenship, since "[t]he phrase ‘or thereafter begins to reside permanently’ alters only the timing of the residence requirement, not the requirement of legal residence." Id. at 1062. In doing so, we conducted a surplusage analysis, concluding that "[t]o interpret the second clause as conferring derivative citizenship on children who otherwise meet the requirements as long as they are permanently living in the United States would render the first clause—requiring legal permanent residence—superfluous." Id.

Subsequently, other circuits have interpreted the statute differently. The Second Circuit in Nwozuzu v. Holder , 726 F.3d 323 (2d Cir. 2013), declined to read a lawful permanent residence requirement into the second pathway. The court concluded that the second pathway permitted a minor to derive citizenship if, after a parent's naturalization, he " ‘beg[an] to reside permanently in the United States while under the age of eighteen years’—irrespective of whether he had been lawfully admitted for permanent residence before turning eighteen." Id. at 329 (alteration in original) (quoting 8 U.S.C. § 1432(a)(5) ). Similarly, although declining to adopt either construction of the statute, the First Circuit noted "contrary indications" that point to "reside permanently" not being "just a shorthand for ‘resid[e] ... pursuant to a lawful admission for permanent residence.’ " Thomas v. Lynch , 828 F.3d 11, 15 (1st Cir. 2016) (alteration and omission in original) (concluding that Thomas was not entitled to derivative citizenship under either construction, id. at 17–18 ).²

III

"As with any question of statutory interpretation, our analysis begins with the plain language of the statute." Jimenez v. Quarterman , 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) (citation omitted). "[W]hen deciding whether the language is plain, [we] must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ " King v. Burwell , 576 U.S. 473, 486, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). In addition, we examine the statutory structure and "other traditional aids of statutory interpretation" in order to ascertain congressional intent. Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n , 453 U.S. 1, 13, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). As part of our statutory analysis, "[w]e also look to similar provisions within the statute as a whole and the language of related or similar statutes to aid in interpretation." United States v. LKAV , 712 F.3d 436, 440 (9th Cir. 2013).

In reconsidering Romero-Ruiz in the present context, we are persuaded that the language of Romero-Ruiz swept too broadly and requires modification. Our conclusion is based on the text of the statute itself, the legislative history of derivative citizenship provisions, and the application of traditional tools of statutory interpretation. Ultimately, we conclude that Congress did not intend to require lawful permanent residency for the second pathway to derivative citizenship under the prior statute.

A

As always, we begin with the plain words of the statute, employing the familiar canons of statutory construction. Bottinelli v. Salazar , 929 F.3d 1196, 1199 (9th Cir. 2019). In doing so, we are mindful of "the usual rule that when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." Sosa v. Alvarez-Machain , 542 U.S. 692, 711 n.9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (internal quotation marks and citation omitted). Several features of the text of the statute persuade us that the second pathway of § 1432(a)(5) does not require lawful permanent residency.

First, Congress chose to use two different terms in the statute. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." INS v. Cardoza-Fonseca , 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (alteration in original) (quoting Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ). This presumption applies with even greater force here, where Congress used particular language in one provision and not in another provision of the same subsection of the same statute. See Cheneau , 971 F.3d at 972 (Bennett, J., concurring). And, because the term "reside permanently" was carried over from earlier derivative citizenship statutes predating the introduction of the term of art "lawful admission for permanent residence" in the 1952 INA, see Citizenship Act of 1907, ch. 2534, § 5, 34 Stat. 1228, 1229 (repealed 1940), Congress would not have intended "reside permanently" to be a shorthand for "lawful admission for permanent residence." Therefore, from the outset we presume that the terms have different meanings.

Second, the terms "lawful admission for permanent residence" and "reside permanently" have different meanings in the INA. The term "lawful admission for permanent residence" is explicitly defined as a particular legal status: " ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of...