United States v. Scott, 12 Cr. 154(RJS).
| Decision Date | 30 January 2013 |
| Docket Number | No. 12 Cr. 154(RJS).,12 Cr. 154(RJS). |
| Citation | 919 F.Supp.2d 423 |
| Parties | UNITED STATES of America v. Lacey SCOTT, Defendant. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
P. Ian McGinley, Assistant United States Attorney, United States Attorney's Office, New York, NY, for Government.
Kelly Anne Moore, Esq., and Nicholas Schretzman, Esq., of Morgan Lewis & Bockius LLP, New York, NY, for Defendant.
Defendant Lacey Scott (“Defendant”) is charged in a two-count Indictment with (1) illegally reentering the United States after committing an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and (2) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Now before the Court is Defendant's motion to dismiss Count One of the Indictment on the ground that he could not have reentered the United States illegally because, prior to his deportation, he derived United States citizenship from his naturalized father.For the reasons that follow, the Court disagrees and, as stated at the Court conference on January 24, 2013, denies Defendant's motion.
Defendant was born in Jamaica on October 27, 1981 to Beverly Taylor (“Beverly”) and Duke Scott (“Duke”), who were not and have never been married to one another. (Aff. of Beverly Smith (neé Beverly Taylor), dated September 6, 2012, Doc. No. 19 (“Smith Aff.”), ¶ 3.) Defendant's birth certificate identifies Duke as Defendant's father. On June 18, 1986, Duke moved to the United States and married Faithlyn Swaby (“Faithlyn”). (Schretzman Decl. Ex. B; Decl. of Faithlyn Scott, dated Sept. 7, 2012, Doc. 20 (“Scott Decl.”), ¶ 2.)
According to Beverly, she signed a document “[i]n early 1988 ... before a Justice of the Peace in Morant Bay, Jamaica, in which [she] relinquished [her] parental rights entirely and ceded custody to Faithlyn and Duke” so that Defendant could immigrate to the United States and live with them. (Smith Aff. ¶ 5.) On February 2, 1988, when Defendant was six years old, he immigrated to the United States as a lawful permanent resident to live with his father and his stepmother. (Schretzman Decl. Ex. C; Scott Decl. ¶ 3.) On March 13, 1998, when Defendant was sixteen years old, Duke became a naturalized citizen of the United States. (Schretzman Decl. Ex. F.)
In 2005, Defendant was convicted of four federal felonies and sentenced to eighty-seven months in prison. (Decl. of P. Ian McGinley, dated Nov. 19, 2012, Doc. No. 36 (“McGinley Decl.”), Ex. 1.) At his deportation hearing, on or about August 1, 2006, Defendant expressed a desire to be deported to Jamaica as soon as possible and did not ask to consult with an attorney or legal organization about his decision. However, the Immigration Law Judge stated that if it were determined at a later time that Defendant had, in fact, derived United States citizenship from his father, the order of deportation would be void. ( Id.) As a result of his convictions, Defendant was deported from the United States to Jamaica on August 29, 2006.
At some point after his deportation, Defendant reentered the United States and, on or about December 26, 2011, was arrested by officers of the New York City Police Department in the Bronx for possession of a firearm, among other crimes. At no time after his deportation and prior to his arrest had Defendant applied for permission to reenter the United States, as required by federal immigration law.
On February 15, 2012, a federal grand jury sitting in New York returned the Indictment against Defendant. (Doc. No. 1.) On September 7, 2012, Defendant filed the instant motion to dismiss Count One of the Indictment, arguing that, because he derived United States citizenship from his father under 8 U.S.C. § 1432(a) prior to his deportation, he cannot possibly be guilty of the crime of illegal reentry, as charged in Count One. 2 The motion was fully submitted as of November 5, 2012, and the Court heard oral argument on the motion on November 26, 2012. On January 24, 2013, the Court denied the motion. This memorandum sets forth the reasons for the Court's ruling.
Prior to its repeal in 2000, 8 U.S.C. § 1432(a) specified that a “child born outside of the United States of alien parents” who enters the United States acquires derivative citizenship if he meets the following conditions:
(1) The naturalization of both parents: or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(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 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 last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) 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) (emphasis added).3 Here, it is undisputed that, at the time when Duke became a naturalized citizen, Defendant was under the age of eighteen and lawfully residing in the United States. Defendant therefore argues that he qualifies for citizenship under § 1432(a)(3) because, at the time of Duke's naturalization, Duke had sole custody of him and had a “legal separation” from Defendant's mother, even though his parents were never married.4 For purposes of resolving the instant motion, the Court presumes, without deciding, that Duke had legal custody of Defendant at the time when Duke became a naturalized citizen. However, for the reasons that follow, the Court finds that Defendant cannot demonstrate that his parents, who were never married, ever achieved a “legal separation,” as the Second Circuit has defined the term.
“A petitioner claiming derivative citizenship bears the burden of proving his eligibility by a preponderance of the evidence.” Fisher v. Mukasey, No. 08 Civ. 1812(JFB), 2008 WL 4693135, at *17 (E.D.N.Y. Oct. 22, 2008); see Berenyi v. Dist. Dir., 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967) (); Bagot v. Ashcroft, 398 F.3d 252, 256–57 (3d Cir.2005) (); McConney v. INS, 429 F.2d 626, 630 (2d Cir.1970) (same). “[A]ny doubts regarding a petitioner's citizenship status ‘should be resolved in favor of the United States and against [the petitioner].’ ” Fisher, 2008 WL 4693135, at *6 (quoting Berenyi, 385 U.S. at 637, 87 S.Ct. 666).
The term “legal separation” within § 1432(a)(3) is not defined by the statute. In construing the statute, the government argues that the term generally presupposes a valid marriage and that, because Defendant's parents were never married and could not have obtained a separation under Jamaican law, they could not have obtained a “legal separation” under § 1432(a)(3). ( See Opp'n 11–12.) The Court agrees.
“Every circuit that has considered the issue has found a marriage requirement in the term ‘legal separation.’ ” Johnson v. Whitehead, 647 F.3d 120, 125 (4th Cir.2011) (collecting cases); see Lewis v. Gonzales, 481 F.3d 125, 130 (2d Cir.2007); Morgan v. Att'y Gen. of the United States, 432 F.3d 226, 234 (3d Cir.2005); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir.2003); Nehme v. INS, 252 F.3d 415, 425–26 (5th Cir.2001). As the Second Circuit has emphasized, such a result directly flows from the bi-furcated structure of § 1432(a)(3):
[B]ecause the second clause of § 1432(a)(3) explicitly provides for the circumstance in which “the child was born out of wedlock,” we cannot interpret the first clause to silently recognize the same circumstance, and moreover, to do so by excusing the express requirement of a legal separation.... As strange as it may at first appear, this feature of the statute is a principled one. The governing principle ... is respect for the rights of an alien parent who may not wish his child to become a U.S. citizen.
For this reason, although the Second Circuit in Lewis left “open the possibility, however remote, that some jurisdiction might allow unwed couples to achieve a legal separation,” Lewis, 481 F.3d at 130 n. 4, it took care to note that a legal separation under such circumstances would still be required, id. at 130. Here, Defendant does not claim that his birth parents ever obtained a legal separation in Jamaica, and, in any event, Jamaican law forecloses the possibility because it does not recognize common law marriages or allow for legal separation as between unmarried persons. ( See McGinley Decl. Ex. 16 ()). Thus, as applied to Defendant, Lewis requires his birth parents in Jamaica to have been married in Jamaica in order to have achieved a “legal separation” under § 1432(a)(3).
Despite Defendant's arguments to the contrary, the Second Circuit's decision in Brissett v. Ashcroft, 363 F.3d 130 (2d Cir.2004), does not compel a different conclusion. There, the Second Circuit explained that the Immigration and Naturalization Service (“INS”) had interpreted the term “legal separation” to require that “the separation be pursuant to proceedings ... which terminate [a] marriage completely, as by absolute divorce, or which merely separate the parties without destroying the marital status.” 363 F.3d at 133 (internal quotation marks omitted). The Court...
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