Duarte–ceri v. Holder

• Citation: 630 F.3d 83
• Decision Date: 06 December 2010
• Docket Number: Docket No. 08–6128–ag.
• Parties: Ramón Antonio DUARTE–CERI, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States,* Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

630 F.3d 83

Ramón Antonio DUARTE–CERI, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States,* Respondent.

Docket No. 08–6128–ag.

United States Court of Appeals, Second Circuit.

Argued: Jan. 14, 2010.Decided: Dec. 6, 2010.

Amy V. Meselson (Steven Banks, Adriene L. Holder, Scott A. Rosenberg, Jojo Annobil, and Maria Navarro, on the brief), The Legal Aid Society, New York, NY, for Petitioner.Yamileth G. Handuber (Tony West, Terri J. Scadron, and Corey L. Farrell, on the brief), U.S. Department of Justice, Washington, DC, for Respondent.Before: HALL, LIVINGSTON, and CHIN,^** Circuit Judges.Judge LIVINGSTON dissents in a separate opinion.CHIN, Circuit Judge:

On June 14, 1973, petitioner Ramón Antonio Duarte–Ceri (“Duarte”) was born in the Dominican Republic. On June 14, 1991—eighteen years later to the day—Duarte's mother was naturalized as a U.S. citizen in New York. The parties and the Immigration Judge below assumed that Duarte was born in the evening and that his mother was naturalized in the morning. The question presented is whether Duarte was still “under the age of eighteen years” when his mother took the naturalization oath. If so, Duarte acquired derivative U.S. citizenship from his mother by operation of law, and he is not subject to removal from the United States. If not, he is not a U.S. citizen, and he will be deported to the Dominican Republic. We hold, on the assumed facts, that Duarte was still “under the age of eighteen years” when his mother was naturalized. Because there has been no factual finding as to the actual timing of Duarte's birth, however, we transfer the case to the district court for a “new hearing on the nationality claim,” pursuant to 8 U.S.C. § 1252(b)(5)(B).

STATEMENT OF THE CASE

A. The Facts

In the proceedings below, the parties assumed the following facts:

Duarte was born in the Dominican Republic on the evening of June 14, 1973. He was admitted to the United States as a lawful permanent resident in 1981, when he was eight years old. On July 24, 1989, Duarte's parents divorced in New York. The divorce decree granted Duarte's mother, Carmen Paula Duarte, sole custody of Duarte and his younger brother. Duarte was sixteen years old when his mother applied for citizenship on February 5, 1990. Her application was granted on March 15, 1991, and she took the oath of citizenship on the morning of June 14, 1991—the same day as Duarte's eighteenth birthday.

Between 1989 and 1995, Duarte was arrested at least three times. In 1990, he was charged with assault, and sentenced as a youthful offender. In 1991, Duarte pled guilty to possessing stolen property. Then, in 1994, Duarte pled guilty to attempted sale of a controlled substance. On April 14, 1995, the Immigration and Naturalization Service served Duarte with an Order to Show Cause, charging that he was subject to deportation as a non-citizen convicted of a controlled substance offense and an aggravated felony. See 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substance conviction); id. § 1227(a)(2)(A)(iii) (aggravated felony conviction). Duarte admitted the allegations against him, and applied for a waiver of excludability. On February 24, 1997, the Immigration Judge (“IJ”) denied the application for a waiver, and ordered Duarte deported to the Dominican Republic. The Board of Immigration Appeals (the “BIA”) affirmed on September 5, 2001.

B. Procedural History

Starting in November 2004, Duarte pursued a variety of procedural strategies to press his argument that he is actually a U.S. citizen by operation of former section 321(a) of the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1432(a) (1999), repealed by Pub.L. 106–395, § 103(a), 114 Stat. 1631, 1632 (2000). That provision grants derivative citizenship to certain children whose parents are naturalized while they are still “under the age of eighteen years.” Duarte's mother was naturalized on the morning of June 14, 1991. Duarte argues that he qualifies for derivative citizenship because he was born in the evening, and he did not actually reach the age of eighteen years until the evening of June 14, 1991.

Though the BIA did reopen Duarte's case and remand to the IJ on one occasion to consider this issue, the IJ eventually ruled that the precise hour of birth was not relevant to the derivative citizenship inquiry because Duarte “was 18 when that clock moved past midnight [on June 14, 1991].” As a consequence, the IJ did not make any findings of fact as to what time of day Duarte was born on June 14, 1973. On appeal, the BIA agreed with the IJ that the precise timing was not relevant, concluding that “in computing the child's age for derivative citizenship purposes under the applicable statute, the designated age of maturity will be attained at 12:01 a.m. on the applicable anniversary day.”

Duarte has also filed an application for citizenship with U.S. Citizenship and Immigration Services (“USCIS”), a federal habeas corpus petition, and several more motions to reopen at the BIA. USCIS denied Duarte's application, and the Administrative Appeals Office dismissed Duarte's appeal from the denial. The federal district court dismissed the habeas petition, concluding that it did not have jurisdiction over the matter. Duarte–Ceri v. Napolitano, No. 07 Civ. 500A (RJA), 2009 WL 1806694 (W.D.N.Y. June 23, 2009).

On October 23, 2008, the BIA declined to exercise its sua sponte authority to reopen Duarte's case another time. Duarte is now before this Court on a petition for review from the BIA's decision declining to reopen removal proceedings.

DISCUSSION

A. Jurisdiction

Duarte's claim to derivative citizenship presents an issue of law over which we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D) (judicial review preserved as to constitutional claims or questions of law); id. § 1252(b)(5)(A) (“If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.”).

Although Duarte's claim comes to us in the posture of a petition for review from the BIA's refusal to reopen removal proceedings sua sponte—a discretionary decision that is normally not reviewable by the Courts of Appeals, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006)—here, Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a citizen. An assertion of U.S. “citizenship is thus a denial of an essential jurisdictional fact” in a deportation proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922); see also Frank v. Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) (“Until the claim of citizenship is resolved, the propriety of the entire proceeding is in doubt.”).

B. Merits

To resolve the legal question presented, we assume the facts assumed by the parties and the IJ below—that Duarte was born the evening of June 14, 1973 and his mother was naturalized the morning of June 14, 1991.

To determine whether a petitioner obtains derivative citizenship, the court “appl[ies] the law in effect when [petitioner] fulfilled the last requirement [to qualify].” Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir.2005). At the time Duarte's mother received her citizenship in 1991, section 321(a) of the INA provided, in relevant part:

A child born outside the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions: ...

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is unmarried and 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 ... (3).

8 U.S.C. § 1432(a) (emphasis added) (repealed 2000).¹

Duarte meets condition (3) because at the time his mother was naturalized, she had sole legal custody of him under a valid divorce decree. He also meets condition (5) because he began to reside in the United States as a lawful permanent resident in 1981, when he was eight years old. In terms of condition (4), Duarte was unmarried at the time of his mother's naturalization. The question we must address is whether Duarte still qualified as “under the age of eighteen years” when his mother was naturalized on the morning of his eighteenth birthday.

The language of the statute is ambiguous. The phrase “under the age of eighteen years” is susceptible to two meanings. On one hand, it could refer to an applicant who has not yet reached the eighteenth anniversary of his birth. Under this interpretation, Duarte's claim fails, for he had reached the eighteenth anniversary of his birth when his mother was naturalized. On the other hand, it could refer to an applicant who has not yet lived in the world for eighteen years. Under this interpretation, on the assumed facts, Duarte's claim prevails, for, as a matter of biological fact, on the morning of June 14, 1991, Duarte had not yet lived for eighteen years. Rather, he had lived approximately seventeen years, 364 days, and twelve hours.

Faced with two plausible readings of the statutory language, and a congressional direction to “decide the nationality claim,” we conclude that the circumstances of this case and principles of statutory construction require us to adopt the interpretation that preserves rather than extinguishes citizenship.²

First, on the assumed facts, as a factual matter Duarte had not lived eighteen years when his mother was naturalized. Under the BIA's decision, he would be deported only because...