U.S. v. Connolly

• Decision Date: 04 December 2008
• Docket Number: Docket No. 06-3139-cr.
• Parties: UNITED STATES of America, Appellee, v. Odell CONNOLLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

552 F.3d 86

UNITED STATES of America, Appellee, v. Odell CONNOLLY, Defendant-Appellant.

Docket No. 06-3139-cr.

United States Court of Appeals, Second Circuit.

Submitted: June 18, 2008.

Decided: December 4, 2008.

Daniel Nobel, New York, NY.

John A. Nathanson, Assistant United States Attorney (Benton J. Campbell, United States Attorney and Emily Berger, Assistant United States Attorney, for the Eastern District of New York, on the brief), Brooklyn, NY.

Before: STRAUB, RAGGI, Circuit Judges, SESSIONS,^* District Judge.

SESSIONS, District Judge:

Defendant-Appellant Odell Connolly appeals from the judgment of the District Court for the Eastern District of New York (Sandra L. Townes, Judge) entered on June 20, 2006, finding him guilty of illegal reentry into the United States as an alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Connolly argues on appeal, as he did before the District Court, that the judgment must be vacated because he is a United States citizen under 8 U.S.C. § 1403. The District Court concluded that § 1403 does not confer citizenship upon Connolly for two reasons. First, it held that Larry Brewer, Connolly's biological father, did not qualify as Connolly's father for the purposes of § 1403. Second, it held that Brewer was not employed by the United States government at the time of Connolly's birth. We affirm the judgment of the District Court solely on the latter ground.

BACKGROUND

The parties stipulated to the following relevant facts at the proceedings before the District Court. Connolly was born in Panama on April 21, 1968. His mother, Norma Connolly, was at the time a Panamanian citizen, but his father, Larry Brewer, was a United States citizen. Brewer was drafted into the United States Army Reserves on April 29, 1966, and, after a period of training, posted to the 577th Artillery Brigade and stationed at Fort Sherman in the Panama Canal Zone. Brewer remained in Panama on active duty until April 3, 1968. While in Panama, Brewer and Norma Connolly had a relationship which culminated in Norma Connolly's pregnancy. Connolly's paternity is uncontested; indeed, Brewer submitted a sworn affidavit to the District Court acknowledging that his paternity of Connolly. Brewer and Norma Connolly were never married. On April 3, 1968, Brewer was separated from active duty, transferred into the Ready Reserves, and assigned to a command in St. Louis, Missouri. Eighteen days later, Odell Connolly was born.

From April 1968 through June 1970, while Brewer was still a member of the reserves, the Army neither ordered nor asked him to perform any duties or services. Brewer did not receive any pay nor any other form of compensation from the Army or any other agency or unit of the United States government. The Army maintained the authority to recall Brewer to active duty; however, this authority was not exercised. Upon his return to Illinois in 1968, Brewer resumed his prior employment with the Ford Motor Company full-time. In June 1970, Brewer transferred voluntarily to the 425th Transportation Command in Forest Park, Illinois, and for the four months that he was there, he participated in periodic drills and training. In October 1970, Brewer transferred back to the St. Louis command; in April 1971, he was transferred to the Army Standby Reserves; and in April 1972, Brewer was discharged from military service.

Connolly legally entered the United States in 1993. He was arrested on January 24, 1995, and pled guilty to a drug-related felony on December 6, 1995. The Immigration and Naturalization Service ("INS") thereafter placed Connolly in deportation proceedings, and he was ultimately deported in December 1998. At no point during the deportation proceedings did Connolly assert his claim of United States citizenship. Connolly most recently reentered the United States sometime after January 2002. He subsequently gained employment, first as a medical assistant and then as an emergency medical technician. After a routine check, the Department of Homeland Security¹ discovered that Connolly appeared to be residing in the United States and arranged for his arrest on April 28, 2005.

DISCUSSION

Connolly maintains that he is and has been a United States citizen since birth by force of 8 U.S.C. § 1403, a rarely adjudicated provision of immigration and nationality law. Section 1403 prescribes the following:

Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

8 U.S.C. § 1403(b). The application of this provision to the specific facts of this case raises two exegetic questions regarding the definitions of "father" and "employed." We review the District Court's determination regarding the statute's definitions of "father" and "employed by the United States" de novo, because they are matters "of statutory interpretation." Boykin v. KeyCorp, 521 F.3d 202, 207 (2d Cir.2008).

The first question is whether the term "father" as used in § 1403 refers simply to a male parent and therefore includes the biological father of a child born out of wedlock. The government has proposed a more narrow and complex definition. Relying on an interpretation letter apparently issued by the INS, Interpretation 303. 1, the government argues that "father" as used in this section must be read to exclude the father of a child born out of wedlock "unless the child is legitimated in accordance with the law of the father's domicile." INS Interpretation Letter 303.1, 2001 WL 1333855 (2001). The District Court concluded that Interpretation 303.1 was entitled to Chevron deference, despite the scant information available about the document itself.² United States v. Connolly, No. 05-cr-428, 2006 U.S. Dist. LEXIS 22956, at *10, 2006 WL 1084693, *4 (E.D.N.Y. Apr. 25, 2006). However, there are a number of reasons to question this conclusion.

Chevron requires that courts undertake a two-step inquiry when reviewing an agency's construction of a statute that comes within its purview. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. Only "if the statute is silent or ambiguous with respect to the specific issue," should the reviewing court reach the second question, namely, "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778; see also Puello v. BCIS, 511 F.3d 324, 327 (2d Cir.2007) ("Well-established principles of construction dictate that statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there."). Moreover, an "administrative implementation of a particular statutory provision qualifies for Chevron deference [only] when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).

In this case, it is unclear whether the District Court addressed the first step of the inquiry. Indeed, there appears to be little ambiguity in the language of § 1403. The statute uses the term "father" without modification, restriction or exception. INS Interpretation 303.1 itself observed that the precursor statute to § 1403 "makes no distinction between persons born in or out of wedlock." INS Interpretation Letter 303.1, 2001 WL 1333855. Nor is such a distinction drawn anywhere in the legislative history.

In determining whether Congress has spoken clearly and directly to a question at issue, we recently observed "that `statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.'" Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc) (quoting Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)). "`[W]e begin with the understanding that Congress says in a statute what it means and means in a statute what it says there.'" Id. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)). In this case, the ordinary meaning of "father" is a male parent,³ and it is the duty of the court to enforce the plain statutory language. See Hartford Underwriters Ins. Co., 530 U.S. at 6, 120 S.Ct. 1942.

Furthermore, the absence of language distinguishing children born out of wedlock does not permit an inference of ambiguity in this case. Consideration of the broader statutory framework makes this clear. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ("In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. ... A court must ... interpret the statute as a symmetrical and coherent regulatory scheme." (citation and internal quotation marks omitted)). Where Congress has wished to distinguish fathers of children born out of wedlock in Title 8, it has not shied away from express language to that effect. For purposes of subchapters I and II, of Chapter 12, Title 8, Co...