Jaen v. Sessions, Docket No. 17-1512

• Decision Date: 13 August 2018
• Docket Number: Docket No. 17-1512,August Term, 2017
• Citation: 899 F.3d 182
• Parties: Levy Alberto JAEN, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

899 F.3d 182

Levy Alberto JAEN, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

Docket No. 17-1512

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: April 12, 2018

Decided: August 13, 2018

IAN SAMUEL (Andrea A. Saenz, Brooklyn Defender Services, on the brief), Cambridge, MA, for Respondent Levy Alberto Jaen.

RACHEL L. BROWNING, Trial Attorney (Keith I. McManus, Assistant Director, on the brief), for Chad A. Readler, Acting Assistant Attorney General, Washington, D.C., for Respondent Jefferson B. Sessions III, Attorney General of the United States.

Shailee Diwanji Sharma, Andrew A. Ruffino, on the brief, Covington & Burling LLP, New York, N.Y. for Amici Curiae Family Law Professors, Jamie R. Abrams, University of Louisville Brandeis School of Law, Susan Frelich Appleton, Washington University School of Law, Barbara A. Atwood, University of Arizona Rogers College of Law, Margaret B. Drew, University of Massachusetts School of Law, Ann E. Freedman, Rutgers Law School, Philip M. Genty, Columbia Law School, Cynthia Godsoe, Brooklyn Law School, Martin Guggenheim, New York University School of Law, Leslie Harris, University of Oregon School of Law, Susan Hazeldean, Brooklyn Law School, Deseriee Kennedy, Touro Law Center, Theo Liebmann, Maurice A. Deane School of Law at Hofstra University, Solangel Maldonado, Seton Hall Law School, Carlin Meyer, New York Law School, Catherine J. Ross, George Washington University Law School, Elizabeth Scott, Columbia Law School, Barbara J. Stark, Maurice A. Deane School of Law at Hofstra University, Edward Stein, Cardozo School of Law, David B. Thronson, Michigan State University College of Law, in support of Petitioner Levy Alberto Jaen.

Before: WINTER, POOLER, and PARKER, Circuit Judges.

Judge Rosemary S. Pooler concurs in a separate opinion.

POOLER, Circuit Judge:

On April 15, 2015, Levy Alberto Jaen was served with a Notice to Appear charging him with removability under Sections 237(a)(1)(B) and 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA").¹ During the immigration proceedings that followed, both before the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA"), Jaen repeatedly raised the issue of citizenship, claiming that he was a United States citizen and therefore unremovable. On April 13, 2018, this Court filed an order granting Jaen’s petition for review, determining that he is a United States citizen and not subject to immigration detention or removal. The order effectuated his release from immigration detention, terminated all removal proceedings against him, and indicated an opinion would follow.

We hold today that Jaen acquired United States citizenship at birth through his United States citizen parent, Jorge Boreland, the husband of his mother and his legal parent under the relevant section of the INA.

BACKGROUND

Jaen was born on May 12, 1972 in Panama. At the time of Jaen’s birth, his mother, Leticia Rogers Boreland, was married to a man named Jorge Boreland, who had been born in the Panama Canal Zone in 1927 and became a naturalized United States citizen in 1961. Jaen’s Panamanian birth certificate, however, lists Liberato Jaen as his father, a man with whom Leticia had an extramarital relationship during her marriage to Jorge. Leticia and Jorge were married in 1952, had seven children together prior to the birth of Jaen (three of whom were born in Panama, four of whom were born in the United States), and remained married for approximately 47 years until Jorge died in 1999.

Jaen lived in Panama with his grandparents until he entered the United States on a nonimmigrant visa on May 8, 1988 at the age of 15. He was raised as the youngest child of the Boreland family and has remained in the United States since his 1988 entry.

In 2008, Jaen was convicted of criminal possession of a controlled substance in the fourth degree under New York state law. In 2014, he was convicted of a second controlled substance violation in New York. While he was serving his sentence for the second conviction, Immigration and Customs Enforcement ("ICE") served Jaen with a Notice to Appear, charging him with removability.

Jaen appeared pro se in his initial appearances before the IJ, but repeatedly raised the issue of his citizenship. The first IJ to hear Jaen’s case determined that Jaen was not a citizen, but permitted him to pursue other relief in later proceedings. Jaen’s case was then transferred to a different immigration court before a different IJ, where Jaen was represented by his present counsel. On October 18, 2016, Jaen’s counsel filed a motion to terminate removal proceedings on the basis of Jaen’s acquired United States citizenship. The IJ orally denied the motion during a hearing on November 23 and issued a written decision on December 8. The BIA affirmed that decision and order on May 2, 2017. Jaen remained in immigration detention for the entire duration of his immigration proceedings and subsequent appeals until our Court ordered his release on April 13, 2018.

DISCUSSION

For reasons explained below, the sole question presented in this appeal is whether Jorge Boreland was Jaen’s "parent" for the purposes of having acquired United States citizenship at birth under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7). We hold today that the INA incorporates the common law meaning of "parent" into former Section 1401(a)(7), such that a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link. Former Section 1401(a)(7) does not include a requirement that an individual be a biological parent in order to be a "parent" for purposes of transmitting citizenship to their child at birth.

I. Standard of Review

We are tasked with statutory interpretation, which presents a question of law we review de novo. See INS v. Cardoza-Fonseca , 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (explaining that "a pure question of statutory construction" is "for the courts to decide"). Additionally, the INA specifically directs appellate courts to review nationality claims in petitions for review of orders of removal. If there are no genuine issues of material fact regarding the petitioner’s nationality, "the court [of appeals] shall decide the nationality claim." 8 U.S.C. § 1252(b)(5)(A). If genuine issues of material fact remain, the court of appeals is directed to "transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim." 8 U.S.C. § 1252(b)(5)(B). Congress has explicitly designated an area of judicial review exclusively for Article III courts when a petitioner argues that he is in fact a citizen of the United States who is not subject to removal. Our review of the legal question of citizenship is therefore de novo.² See Gil v. Sessions , 851 F.3d 184, 186 (2d Cir. 2017).

II. Statutory Basis of Citizenship Claim

"There are two sources of citizenship, and two only: birth and naturalization." Miller v. Albright , 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (internal quotation marks omitted). Congress has provided for the transmission of citizenship from U.S. citizen parents to their children in two categories: derivative citizenship and acquired citizenship. Derivative citizenship is transmitted from the parent to the child after the child is born. 8 U.S.C. § 1431. Acquired citizenship renders the child a U.S. citizen from the moment of his or her birth. 8 U.S.C. § 1401 (defining "[n]ationals and citizens of United States at birth"). It is this second type of citizenship—U.S. citizenship acquired at the moment of birth—that Jaen lays claim to in this appeal.

"Citizenship of a person born abroad is determined by law in effect at the time of birth."³ Hizam v. Kerry , 747 F.3d 102, 105 (2d Cir. 2014) ; see also Drozd v. Immigration and Naturalization Service , 155 F.3d 81, 86 (2d Cir. 1998). Because Jaen was born in May 1972, his claim to citizenship is governed by former 8 U.S.C. § 1401(a)(7), which provides:

The following shall be nationals and citizens of the United States at birth:

[...]

(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided , That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

Special App’x at 11. In order to establish a claim to citizenship, Jaen must demonstrate that he meets these conditions prescribed by the law in effect at the time of his birth.

The IJ declined to decide whether Jaen fulfilled the "remaining requirements" (e.g., the physical presence requirement for Jaen’s putative U.S. citizen parent), Special App’x at 7, but the government does not contest Jaen’s claim that the other requirements are satisfied. Because the government does not argue that Jaen fails to meet the other requirements, the government abandoned its challenge to those portions of the citizenship criteria. See Zhang v. Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005) ; see also Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal."). Accordingly, the sole issue on appeal is whether Jorge Boreland is Jaen’s "parent" for purposes of the acquisition of citizenship under former 8 U.S.C. § 1401(a)(7).

III. "Parent" in Former 8 U.S.C. § 1401(a)(7)

Jorge Boreland is not the biological father...