Duarte v. Holder ( 2010 )

08-6128-ag
Duarte v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2009
Argued: January 14, 2010 Decided: December 6, 2010
Docket No. 08-6128-ag
RAMÓN ANTONIO DUARTE-CERI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,*
Respondent.
Before: HALL, LIVINGSTON, and CHIN,** Circuit Judges.
Judge LIVINGSTON dissents in a separate opinion.
Petition for review of a decision of the Board of
Immigration Appeals denying a motion to reopen removal
proceedings. Petitioner contends that his removal is improper
because he is a U.S. citizen by operation of a former provision
of the Immigration and Nationality Act. We TRANSFER the
proceedings to the district court for factual findings and HOLD
IN ABEYANCE the petition for review.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is automatically
substituted for former Attorney General Michael B. Mukasey.
**
At the time of oral argument, Judge Chin was a District
Judge sitting by designation.
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.
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).
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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
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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
- 4 -
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
- 5 -
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 (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: . . .
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(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).3
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
3
Subsections (1) and (2) are not relevant to Duarte's
petition.
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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
2
Although the Government did not argue in its brief that
the BIA's interpretation of former INA § 321(a) was entitled to
deference under Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984), it did so in a subsequent
submission pursuant to Rule 28(j) of the Federal Rules of
Appellate Procedure. We reject the argument. "While the BIA's
interpretation of immigration statutes is generally entitled to
Chevron deference, interpretations in non-precedential
unpublished BIA decisions . . . are not so entitled." Dobrova v.
Holder, 607 F.3d 297, 301 (2d Cir. 2010) (citing Mendis v. Filip,
554 F.3d 335, 338 (2d Cir. 2009)). The BIA's 2008 decision in
Duarte's case is a non-precedential, unpublished decision.
Indeed, the BIA has never formally codified the view expressed in
its decision in this case -- namely, that the "age of maturity
will be attained at 12:01 a.m. on the applicable anniversary day
(21st, 18th, or 16th) of the child's birth." In re Ramon Antonio
Duarte-Ceri, No. A37 161 007 (B.I.A. Nov. 21, 2005). Instead, in
the BIA's only published decision in which the agency encountered
the situation we face today -- where a crucial event occurs on
the same day as the applicant's birthday -- the BIA took a
lenient view. See Matter of L-M- and C-Y-C-, 4 I. & N. Dec. 617(B.I.A. Feb. 20, 1952). We discuss this case more thoroughly
infra.
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Duarte had not lived eighteen years when his mother was
naturalized. Under the BIA's decision, he would be deported only
because of the application of a legal fiction -- that he turned
eighteen years of age at the stroke of midnight on the eighteenth
anniversary of his birth.
Second, the Supreme Court has long held that "whenever
it becomes important to the ends of justice, . . . the law will
look into fractions of a day, as readily as into the fractions of
any other unit of time." Town of Louisville v. Portsmouth Sav.
Bank, 104 U.S. 469, 474 (1881); accord Taylor v. Brown, 147 U.S.
640, 645-46 (1893) ("as to the general doctrine that the law does
not allow of fractions of a day, it is settled that, when
substantial justice requires it, courts may ascertain the precise
time when . . . an act [is] done"). The legal fiction that a day
is indivisible is a rule of convenience that is satisfactory only
as long as it does not operate to destroy an important right.
See In re Gubelman, 10 F.2d 926, 930 (2d Cir. 1925). "There is
no indivisible unity about a day which forbids us, in legal
proceedings, to consider its component hours, any more than about
a month, which restrains us from regarding its constituent days.
The law is not made of such unreasonable and arbitrary rules."
Portsmouth Sav. Bank, 104 U.S. at 475. In the bankruptcy
context, for example, courts have long considered fractions of
days to determine certain rights.3
3
See, e.g., Vanco Trading, Inc. v. Monheit (In re K
Chemical Corp.), 188 B.R. 89, 95-96 (Bankr. D. Conn. 1995)
- 9 -
Third, here, it is important to the ends of justice to
parse the day into hours, for "the most precious right" of
citizenship is at stake. Kennedy v. Mendoza-Martinez, 372 U.S.
144, 159 (1963). "The stakes are indeed high and momentous,"
Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), for
"deportation is a drastic measure and at times the equivalent of
banishment or exile." Fong Haw Tan v. Phelan, 333 U.S. 6, 10
(1948). If we abide by the legal fiction that a day is
indivisible for these purposes, then Duarte forfeited his right
to be a U.S. citizen and he will be deported. And although he
grew up in the United States and his mother, brother, and
children are all U.S. citizens, he will be separated from them.
We cannot, and do not, contest that in "everyday speech
and writing," people often use the phrases "under the age of
eighteen" and "before one's eighteenth birthday" interchangeably.
This linguistic imprecision is a matter of convenience -- related
to the legal fiction that a day is indivisible -- and in the vast
majority of contexts, it simply does not matter one way or
another. In particular, it is significant that in most contexts,
(holding that although fractions of a day are generally
disregarded in court proceedings, "the fractionalization approach
is uniformly utilized in a wide range of Bankruptcy Code disputes
involving temporal concepts"); In re Dejay Stores, Inc., 220 F.
Supp. 497, 501 (S.D.N.Y. 1963) (where two bankruptcy petitions
were filed two minutes apart on the same day, holding that "legal
fiction that a day is an indivisible period of time" should be
disregarded where ignoring the time differential would deprive
first petitioning creditors of right to nominate and elect
trustee). Though the dissent argues that bankruptcy is the only
context in which the law parses days, as we discuss herein, this
is not correct.
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an individual gains a right or privilege when he reaches the "age
of eighteen" -- to take the dissent's examples: he is permitted
to buy lottery tickets, work in a public school, sell alcoholic
beverages, visit strip clubs, and, if he is a United States
citizen, he may vote or serve as a juror. Here, Duarte stands to
suffer a great loss, predicated on a rule of convenience. That
it may be somewhat inconvenient to calculate Duarte's precise age
should not be a deterrent because circumstances like these are
not common occurrences.
To the extent that the dissent argues that "the ends of
justice" is too malleable a standard for courts to apply, we
disagree. Courts apply this standard in contexts as varied as
the grant of a continuance in a criminal prosecution, see 18
U.S.C. § 3161(h)(7)(A), the application of the hearsay rule, see
Chambers v. Mississippi, 410 U.S. 284, 302 (1973), the
adjudication of successive habeas claims, see Schlup v. Delo, 513
U.S. 298, 320 (1995), and the relaxation of procedural rules, see
Schacht v. United States, 398 U.S. 58, 64 (1970). In short,
courts are entrusted with determinations based on the "ends of
justice" each and every day; indeed, such determinations are at
the heart of judicial decision-making, preventing mechanical
interpretations of rules from devolving into injustice.
In the immigration context, there is a long-standing
presumption to construe "any lingering ambiguities" in favor of
the petitioner. INS v. Cardoza-Fonsesca, 480 U.S. 421, 449
(1987). Here, Congress enacted the derivative citizenship
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statute to ensure that "alien children whose real interests were
located in America with their custodial parent, and not abroad,
should be automatically naturalized." Bustamante-Barrera v.
Gonzales, 447 F.3d 388, 397 (5th Cir. 2006) (internal quotation
marks omitted). The statute "implements the underlying intention
of our immigration laws regarding the preservation of the family
unit." H.R. Rep. No. 82-1365, at 24 (1952), as reprinted in 1952
U.S.C.C.A.N. 1653, 1680. It is consistent with Congress's
remedial purposes, therefore, to interpret the statute's
ambiguity with leniency, and we should interpret the statute here
in a manner that will keep families intact.
It is noteworthy that the statute did not provide that
a parent's naturalization had to take place "before the child
attains his eighteenth birthday" or "prior to the child's
eighteenth birthday." This language would be unambiguous because
the entirety of June 14, 1991 was Duarte's eighteenth birthday --
from 12:00 a.m. until 11:59 p.m. No matter what time Duarte was
born, his mother was not naturalized "prior to his eighteenth
birthday." Indeed, Congress has actually employed similar
unambiguous age-related phrasing elsewhere in the INA. See,
e.g., 8 U.S.C. § 1483(b) ("A national . . . shall not be deemed
to have lost United States nationality by the commission, prior
to his eighteenth birthday, of any of [enumerated acts]."); id. §
1101(a)(27)(I)(i) (referring to certain conditions that must be
performed "no later than [one's] twenty-fifth birthday" to
qualify as a "special immigrant"); see also 18 U.S.C. § 5031- 12 -
("For the purposes of this chapter, a 'juvenile' is a person who
has not attained his eighteenth birthday."). On the other hand,
if the words "under the age of eighteen years" are given their
literal meaning, Duarte was eligible to become a citizen
derivatively because he was still "under the age of eighteen
years" when his mother was naturalized -- he apparently had lived
only for approximately seventeen years, 364 days, and twelve
hours.
We cannot simply dismiss the difference in language
between former INA § 321(a) ("a child . . . under the age of
eighteen years") and 18 U.S.C. § 5031 ("a person who has not
attained his eighteenth birthday") as inadvertent or immaterial.
In 1948, Congress took the affirmative step of eliminating
ambiguity in 18 U.S.C. § 5031 by amending it to replace the
phrase "seventeen years of age or under" with "who has not
attained his eighteenth birthday." 18 U.S.C. § 5031 Notes to
1948 Acts. It did so after a district judge wrote to express
"the necessity of a definite fixing of the age of [a] juvenile."
Id. Congress could have made a similar change to the statutory
language here, but it did not.
In 1952, the BIA, in a published decision, interpreted
a citizenship statute that required a child born to U.S. citizens
outside the United States to take up residence in the United
States "by the time he reaches the age of 16 years" to retain his
U.S. citizenship. See In re L-M- and C-Y-C-, 4 I. & N. Dec. at
618 (quoting Nationality Act of 1940 § 201(g)). The two
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appellants returned to the United States on their sixteenth
birthday, one at 4 a.m. and the other at 8 a.m. The government
argued that they were too late because they had turned sixteen at
12:01 a.m., and thus arrived after they had reached the age of
sixteen. Id. The BIA rejected the argument, and ruled that it
was sufficient that the appellants arrived on the day they turned
sixteen. It held that, when considering "the great privilege of
citizenship," "the method of arriving at the computation is to be
in the interest of the person affected by it." Id. at 620. The
BIA concluded that:
A divestiture of American citizenship should
not be predicated upon an ambiguity. Where
the language of the statute is capable of
more than one construction, that construction
is favored by the law which will best
preserve a right or prevent a forfeiture.
Id. at 621.1
These principles apply with equal force here. Where a
statute conferring citizenship derivatively is susceptible of two
interpretations, the only difference being the divisibility of a
unit of time, the law favors the interpretation that preserves
the right of citizenship over the interpretation that forfeits
it. On the assumed facts, we conclude that Duarte was "under the
age of eighteen years" when his mother was naturalized.
C. Transfer
In the context of removal proceedings, claims that a
1
The dissent notes that this case has not frequently
been cited. Likely, this is because it is such a rare
circumstance that the final qualifying citizenship event occurs
on the same day as the applicant's crucial birthday.
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petitioner is a U.S. national are governed by 8 U.S.C. §
1252(b)(5). The court of appeals "shall" decide such nationality
claims if it "finds from the pleadings and affidavits that no
genuine issue of material fact about the petitioner's nationality
is presented. 8 U.S.C. § 1252(b)(5)(A). If, however, the court
of appeals concludes that "a genuine issue of material fact about
the petitioner's nationality is presented, the court shall
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 as if an action had been brought in the district court
under section 2201 of Title 28." 8 U.S.C. § 1252(b)(5)(B). We
determine the existence of a genuine issue of material fact for
these purposes using the same principles employed on a Rule 56
motion for summary judgment. See Agosto v. INS, 436 U.S. 748,
754 (1978); Ayala-Villanueva v. Holder, 572 F.3d 736, 738 (9th
Cir. 2009).
In the removal proceedings, the parties and the IJ
assumed that Duarte was born the evening of June 14, 1973, but
the IJ determined there was no need for factual findings in that
respect because the time of the birth was legally insignificant.
Duarte submitted affidavits from his mother as well as a nurse
who purportedly participated in the delivery stating that Duarte
was born at approximately 9 p.m. on June 14, 1973. The
Government did not submit any evidence to contradict the
affidavits, but there was no reason for it to do so because of
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the IJ's ruling on the legal question.5 The issue is now
squarely presented because of our conclusion that the precise
timing of Duarte's birth on June 14, 1973, is relevant.
Accordingly, we transfer the matter to the United States District
Court for the Western District of New York for a new hearing on
Duarte's nationality claim, pursuant to 8 U.S.C. §
1252(b)(5)(B).6
CONCLUSION
For the reasons set forth above, we TRANSFER this
proceeding to the United States District Court for the Western
District of New York, and HOLD IN ABEYANCE his petition for
review.
5
We note that in its brief on appeal, the Government
states that "there is no genuine issue of material fact regarding
Duarte's citizenship claim" and that "the issues presented on
this citizenship claim are purely legal." Under the
circumstances, we do not construe this as a concession that
Duarte in fact was born in the evening on June 14, 1973.
6
The most recent indication in the record is that Duarte
"resides" at the Buffalo Detention Facility in Batavia, New York,
in the Western District of New York.
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DEBRA ANN LIVINGSTON, Circuit Judge, dissenting:
Petitioner Ramon Antonio Duarte-Ceri (“Duarte”) is a 37-year-
old native of the Dominican Republic who entered this country as a
lawful permanent resident in 1981, when he was eight years old.
Brought here by his parents as a child, Duarte could have applied
to be a citizen at any time on or after June 14, 1991, when he
turned eighteen. Unfortunately, he never did so. Instead, Duarte
compiled an “extensive criminal history in this country, including
convictions for violent and controlled substance crimes,” In re
Ramon Antonio Duarte-Ceri, No. A037 161 007 (B.I.A. Sept. 5, 2001),
that now renders him ineligible for citizenship. Duarte was
ordered deported by an Immigration Judge in February 1997 and this
decision was affirmed by the Board of Immigration Appeals (“BIA”)
in 2001. Duarte did not leave the country, nor did he appeal the
BIA decision to this Court, but he did file an untimely motion to
reopen some three years later, in 2004. In this motion he argued
for the first time that he cannot be deported because he is a
United States citizen by virtue of his mother’s naturalization on
June 14, 1991, the day he turned eighteen. The BIA rejected this
argument in 2005, and an appeal of that BIA decision was
voluntarily dismissed before this Court. The Board rejected a
later motion to reopen, prompting the present petition for review.
This is, or should be, a straightforward case of statutory
interpretation. As relevant here, the former derivative
citizenship statute applicable in Duarte’s case provides that a
child born outside the United States of non–U.S. citizen parents
- 1 -
becomes a citizen upon the naturalization of a parent when: (1) the
naturalized parent is the parent “having legal custody of the child
when there has been a legal separation of the parents”; (2) the
child is residing here “pursuant to a lawful admission for
permanent residence at the time of the naturalization”; and finally
(3) “such naturalization takes place while such child is unmarried
and under the age of eighteen years.” 8 U.S.C. § 1432(a) (emphasis
added) (repealed 2000) (hereinafter “derivative citizenship
statute” or “§ 1432(a)”). The majority concludes that Duarte was
“under the age of eighteen years” on June 14, 1991, the day he
turned eighteen, until the anniversary of the very moment of his
birth eighteen years before in 1973. Accordingly, the majority
determines that Duarte became a citizen on June 14, 1991 so long as
his mother’s naturalization that day took place before the time at
which he was born eighteen years earlier. Because I cannot concur
in this novel and utterly implausible reading of the statute, I
respectfully dissent. The petition for review should be denied.
* * *
In interpreting a statute, we give its terms, read in their
appropriate context, their ordinary, common meaning and when the
text, thus read, provides an answer, our work is complete. See,
e.g., Bilski v. Kappos , 130 S. Ct. 3218, 3226 (2010) (“[I]n all
statutory construction, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning.” (internal quotation marks and alteration omitted)); Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (“When the words of
- 2 -
a statute are unambiguous . . . this first canon [of statutory
construction] is also the last: judicial inquiry is complete.”
(internal quotation marks omitted)). Where the language of the
statute makes its meaning clear, “we [should] decline to
manufacture ambiguity where none exists.” United States v.
Batchelder, 442 U.S. 114, 122 (1979) (internal quotation marks
omitted). We should not prefer an implausible reading of a
statute’s language to its “ordinary, contemporary, common meaning,
absent an indication Congress intended” a different reading.
Williams v. Taylor, 529 U.S. 420, 431 (2000) (internal quotation
marks omitted).
These incontrovertible principles should end this case because
the ordinary, common meaning of the phrase “under the age of
eighteen” is “before one’s eighteenth birthday.” This is reflected
in everyday speech and writing.1 Judges have also found this
1
By way of example: (1) “CC Sabathia leads all major
leaguers under the age of 30 in career wins . . . . Who is the
last one to have as many wins as Sabathia before his 30th
birthday?” Peter Botte et al., Teix: No Respect, New York Daily
News, May 19, 2010 at 58; (2) “Most toddlers under the age of two
have already spent some time in front of the TV, . . . even
though it is recommended they get no screen time before their
second birthday.” Laura Stone, “Dangerous” Inactivity Puts
Children at Risk, Ottawa Citizen, Apr. 27, 2010, at A8; (3) “You
need a special salmon license. That license will cost you . . .
$5 if you’re a non-resident under the age of 16. Mainers who
haven’t reached their 16th birthday are exempt from any fee.”
John Holyoke, Any-Deer Permits Are More Hope for Hunters, Bangor
Daily News, Sept. 9, 2006, at D1; (4) “[B]efore his 30th birthday
earlier this month he was Britain’s richest sportsman under the
age of 30.” What’s in a Name . . . , The Irish Times, Apr. 18,
2005, at 7; (5) “More than half of women and almost three-
quarters of men have had intercourse before their 18th
birthday[.] [I]n the mid-1950s, by contrast, just over a quarter
of women under age 18 were sexually experienced . . . .” Allan
Gutmacher Inst., Sex and America’s Teenagers 8 (1994).
- 3 -
obvious in construing statutes that use the phrase “under the age”
— including the very statute the majority purports to construe.
See, e.g., Poole v. Mukasey , 522 F.3d 259, 265 (2d Cir. 2008)
(noting in context of § 1432(a) derivative citizenship claim that
“the final inquiry focuses on whether Poole’s mother received her
citizenship prior to Poole’s eighteenth birthday.”); Bustamante-
Barrera v. Gonzales, 447 F.3d 388, 390 (5th Cir. 2006) (“Prior to
its amendment . . . , § 1432(a) granted derivative citizenship to
a child born outside the United States to alien parents if, before
that child’s eighteenth birthday, [the statute’s requirements were
satisfied].”); Tabucbuc v. Ashcroft, 84 F. App’x 966, 968 (9th Cir.
2004) (mem.) (conditions set forth in 8 U.S.C. § 1432(a) must be
“met prior to [the petitioner’s] eighteenth birthday”); Batista v.
Ashcroft, 270 F.3d 8, 16 (1st Cir. 2001) (“The remaining question
is whether the evidence submitted by petitioner . . . present[s] a
genuine issue of material fact as to whether [the requirements for
derivative citizenship were satisfied] prior to Batista’s
eighteenth birthday.”); Wedderburn v. INS, 215 F.3d 795, 796 (7th
Cir. 2000) (observing that pursuant to § 1432(a), “[c]hildren born
outside the United States, of alien parents, acquire U.S.
citizenship automatically if before their eighteenth birthday they
move to the United States, and one or both of their parents become
U.S. citizens”). Duarte was therefore not “under the age of
eighteen” for purposes of § 1432(a) when his mother was naturalized
on June 14, 1991 because, on the facts the majority assumes to be
true, he was eighteen years old that entire day.
- 4 -
Duarte was eighteen years old the morning of June 14, 1991,
not only for the purposes of derivative citizenship, but for every
other purpose recognized by law, from momentous to trivial. In New
York, for example, a person who has turned eighteen — from the very
first minute of that significant birthday — can be employed serving
alcoholic beverages,2 get married without his parents’ consent, 3
4
work as a teacher in a public school, enter a nude dancing
establishment,5 serve on a jury,6 operate a powerboat unaccompanied
in New York waters,7 be sold “dangerous fireworks,”8 apply for any
2
N.Y. Alco. Bev. Cont. Law § 100(2-a) (“No retailer shall
employ . . . on any premises licensed for retail sale hereunder,
any person under the age of eighteen years, as a hostess,
waitress, waiter, or in any other capacity where the duties of
such person require or permit such person to sell, dispense or
handle alcoholic beverages . . . .”).
3
N.Y. Dom. Rel. Law § 15(2) (“If it shall appear . . . that
either party is at least sixteen years of age but under eighteen
years of age, then the town or city clerk before he shall issue a
[marriage] license shall require the written consent to the
marriage from both parents of the minor or minors . . . .”).
4
N.Y. Educ. Law § 3001 (“No person shall be employed or
authorized to teach in the public schools of the state who is . .
. [u]nder the age of eighteen years.”).
5
N.Y. Gen. Bus. Law § 390-c(1) (“No person under the age of
eighteen years shall be admitted to any portion of a facility
open to the public wherein performers appear and dance or
otherwise perform unclothed . . . .”).
6
N.Y. Judiciary Law § 510 (“In order to qualify as a juror
a person must . . . [b]e not less than eighteen years of age.”).
7
N.Y. Nav. Law § 49(1) (“No person under the age of eighteen
years shall operate a mechanically propelled vessel on the
navigable waters of the state . . . .”).
8
N.Y. Penal Law § 270.00(2)(b)(ii)-(iii) (provisions
relating to sale of “dangerous fireworks” to “any person who is
under the age of eighteen”).
- 5 -
class of adult drivers’ license,9 purchase state lottery tickets,10
and he can no longer be claimed as a dependent child for purposes
of family assistance.11 For purposes of federal law, he can, among
other things, vote in an election held on his birthday. 12 These
examples are by no means a complete catalogue of the numerous times
federal and state statutes use the phrase “under the age of ---” to
denote one who has not yet reached a particular birthday, or
variants of the phrase “reach the age of ---” to denote one who has
reached the birthday in question. “[T]he reality is that in these
situations,” among many others, “a person is considered by common
practice to be a year older on the first moment of the date of
their birth, rather than the exact hour.” State v. Yarger, 908
N.E.2d 462, 468 (Oh. Ct. App. 2009) (rejecting criminal defendant’s
argument that he should be considered a “child” under Ohio law when
crime was committed on his birthday but before exact hour of his
birth). These statutes are perfectly clear and unambiguous — or at
least they were so, until today.
9
N.Y. Veh. & Traf. Law § 502(2)(b)-(c) (provisions relating
to licenses for which applicant must be “at least eighteen years
of age” to apply absent other qualifications).
10
N.Y. Tax Law § 1610(a) (“No [New York State Lottery]
ticket shall be sold to any person under the age of eighteen
years . . . .”).
11
N.Y. Soc. Serv. Law § 349(A) (eligibility requirements for
“Family assistance [to] . . . a parent or other relative . . .
for the benefit of a child under eighteen years of age”).
12
U.S. Const. amend. XXVI, § 1 (guaranteeing the “right of
citizens of the United States, who are eighteen years of age or
older, to vote”).
- 6 -
The majority finds ambiguity in the derivative citizenship
statute — and presumably would do so with all the countless other
statutes that use the words “under the age,” “reaches the age,” or
some variant thereof — because the words “under the age of
eighteen,” if “given their literal meaning,” Maj. Op. at 15, could
“refer to [a person] who has not yet lived in the world for
eighteen years,” (Id. at 9). But I am aware of no reported case —
anywhere, ever — in which a court interpreted the phrase “under the
age of ---” in a statute to mean “before the exact time the
relevant person was born --- years ago.” To the contrary, the
courts that have directly confronted the question have uniformly
rejected the idea that one’s birth hour is relevant to whether a
person is a certain age on their birthday for the purposes of
statutory construction. See, e.g., State v. Brown, 443 S.W.2d 805,
806-07 (Mo. 1969) (defendant was not subject to jurisdiction of
juvenile court because crime was committed on seventeenth birthday,
albeit two hours prior to defendant’s birth hour, and thus was not
committed “prior to [the defendant’s] having become seventeen years
of age”); Yarger, 908 N.E.2d at 465-68 (collecting numerous cases);
State v. Wright, 948 P.2d 677, 680-83 (Kan. Ct. App. 1997) (same);
People v. Anderson, 439 N.E.2d 65, 71-72 (Ill. App. Ct. 1982).
The lack of support for the majority’s interpretation is
unsurprising, as it is obviously contrary to the common
understanding of the statutory text read as a whole. Assuming that
the word “age” might in some unusual circumstances refer to the
precise duration of time that has elapsed since the exact moment of
- 7 -
a person’s birth, the word cannot be so construed when it is used
in the context of a phrase, “under the age,” that is itself used in
the context of a statute that attempts to draw a dividing line
among people of different ages. And we are obligated to read the
words of statutes not in artificial isolation, as the majority
does, but in their proper context as part of the statute in which
they are found. See United States v. Morton, 467 U.S. 822, 828
(1984); Pettus v. Morgenthau, 554 F.3d 293, 296-97 (2d Cir. 2009);
see also John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev.
2387, 2393 (2003) (“[T]he literal or dictionary definitions of
words will often fail to account for settled nuances or background
conventions that qualify the literal meaning of language and, in
particular, of legal language.”).
The majority’s opinion exemplifies the pitfalls of its unwise
alternative interpretive approach. No reasonable reader would read
the words of § 1432(a) to refer to a person’s so-called
“biological” age, Maj. Op. at 9, when it is absolutely clear from
context that the statute (being a statute) refers to “age” in a
traditional, legal sense — the same sense in which the phrases
“under the age,” “over the age,” “reaches the age,” and the like
are always used when used in statutes. No reader of a typical
underage drinking law thinks that it means that a person can buy
alcohol on their twenty-first birthday only after the exact minute
and hour at which they were born twenty-one years before. Cf. N.Y.
Alco. Bev. Cont. Law § 65 (“No person shall sell, deliver or give
away . . . any alcoholic beverages to . . . [a]ny person, actually
- 8 -
or apparently, under the age of twenty-one years . . . .”). Nor
would a reasonable reader of the Constitution think that if the
polls happened to close before a person’s birth hour when an
election was held on his eighteenth birthday, that this person had
no right to vote earlier in the day. Cf. U.S. Const. amend. XXVI,
§ 1 (guaranteeing the “right of citizens of the United States, who
are eighteen years of age or older, to vote”). And yet the
majority finds § 1432(a) susceptible to just such an unreasonable
reading, contrary to any principle of statutory construction of
which I am aware and, indeed, to common sense.
Relying principally on dicta from an 1881 Supreme Court
opinion that did not involve age but rather the question of when a
law should be deemed enacted, see Louisville v. Sav. Bank, 104 U.S.
469, 478 (1881), the majority does not attempt to limit its
reasoning to the construction of statutes relating to citizenship,
nor could it do so plausibly. As the majority writes, we may
“parse the day into hours,” in spite of clear and unambiguous
statutory language suggesting we may not, whenever it is “important
to the ends of justice.” Maj. Op. at 12 (emphasis added). 13 The
13
The majority seeks support from the fact that bankruptcy
courts “have long considered fractions of days to determine
certain rights,” Maj. Op. at 11, but the cases on which it relies
are simply inapt. Bankruptcy courts parse the day into hours
because they are applying provisions of the Bankruptcy Code that
hinge legal consequences on the order in which specified events
occur — whether, for instance, an expense is incurred before or
after the commencement of a case — and these provisions require
the bankruptcy court to determine the order. See, e.g., Vanco
Trading, Inc. v. Monheit (In re K Chem. Corp.), 188 B.R. 89, 94-
96 (Bankr. D. Conn. 1995), cited in Maj. Op. at 11 n.3 (adopting
a “fractionalization” approach to conclude that a debt incurred
by the debtor on the same day that its petition was filed but
- 9 -
“ends of justice” is a malleable standard at best, and one that a
court is not empowered to employ to displace clear and unambiguous
statutory language. Today the majority invokes this standard
because “citizenship is at stake,” id., but the majority’s
methodology simply cannot be limited to that context. Why
shouldn’t a statute conferring exclusive jurisdiction on a juvenile
court over all persons whose offenses were committed when they were
“under eighteen years of age” be construed to cover a defendant who
committed criminal acts prior to his exact birth hour on his
birthday? See, e.g., Yarger, 908 N.E.2d at 463. After all,
prosecution as an adult can have “harsh consequences,” Ex Parte
Petty, 548 So. 2d 636, 636 (Ala. 1989) (quoting Baldwin v. State,
456 So. 2d 117, 123 (Ala. Crim. App. 1983)), so perhaps the “ends
of justice” might favor parsing out the day into hours in such a
case. But perhaps, on the other hand, the defendant’s
circumstances and the heinousness of the crime suggest he should
face responsibility for his acts as an adult, so parsing would not
serve the “ends of justice.” The result is unknowable applying the
majority’s standard, a state of affairs that the clear language of
§ 1432(a) and the many other statutes using this or similar
before the exact time of filing was not an administrative expense
afforded priority under 11 U.S.C. § 503(b)(1)(A), because by the
terms of the Code such expenses must have been incurred “after
the commencement of the case,” id. at 94 (quoting §
503(b)(1)(A))). These provisions are very different from
statutes such as § 1432(a) that clearly and unambiguously set
forth age distinctions using commonly employed phrases.
- 10 -
phrasing cannot support.14
The majority’s only response to these arguments is that the
commonly understood meaning of “under the age of eighteen” is a
“linguistic imprecision” and “rule of convenience” that should not
be followed in this case. Maj. Op. at 12-13. This is so, suggests
the majority, because while in most contexts it makes no difference
precisely when one reaches the “age of eighteen,” in this case it
does. Id. at 12. But I know of no principle of statutory
construction suggesting that we may depart from the common
understanding of statutory terms — statutory terms that are clear
and unambiguous — simply because we are confronted with a case in
which we believe it is important to do so. Respectfully, to apply
such a principle, as the majority does, is not an act of statutory
construction but judicial draftsmanship. And it flies in the face
of the Supreme Court’s admonition that “[a]n alien who seeks
political rights as a member of this Nation can rightfully obtain
them only upon terms and conditions specified by Congress. Courts
are without authority to sanction changes or modifications; their
duty is rigidly to enforce the legislative will in respect of a
matter so vital to the public welfare.” INS v. Pangilinan, 486
U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243 U.S.
472, 474 (1917)) (internal quotation marks omitted).
The majority thus misses the point of my argument. I do
14
not contend that courts will be unable to apply the majority’s
chosen “standard,” but that the language of § 1432(a) cannot
reasonably be interpreted to permit courts to engage in the
indeterminate inquiry the majority undertakes. Contra Maj. Op.
at 13.
- 11 -
Even if I were to indulge the majority’s view that § 1432(a)
is susceptible to two readings — and it is not — consideration of
the provision in light of related sections of the Immigration and
Nationality Act (“INA”) clearly shows that the majority has
rejected the correct reading. Prior to 1952, under the Nationality
Act of 1940, a child born outside of the United States to alien
parents acquired citizenship derivatively if the child’s parents
(or a single parent if the other parent was deceased or did not
have custody of the child following a separation) were naturalized
“while such child [was] under the age of eighteen years.”
Nationality Act of 1940, Pub. L. No. 76-853, § 314, 54 Stat. 1137,
1145-46. In 1952, Congress repealed the relevant portions of the
Nationality Act and enacted a new version of the derivative
citizenship statute which lowered the relevant age to sixteen
years. See Immigration and Nationality Act, Pub. L. No. 82-414, §
321(a), 66 Stat. 163, 245 (1952) (“A child born outside of the
United States of alien parents . . . becomes a citizen . . . upon
the fulfillment of [various conditions, including the
naturalization of the relevant parent] while such child is under
the age of sixteen years . . . .”). As we noted in Langhorne v.
Ashcroft, 377 F.3d 175 (2d Cir. 2004), the change created a gap
between the age at which a person could acquire citizenship
derivatively and the age at which a person could apply for
citizenship on his own:
Significantly, Section 321(a) [§ 1432(a)] reduced the age
at which a child could acquire derivative citizenship
from eighteen (under the 1940 Act) to sixteen. . . . This
change was problematic, however, for the reason noted by
- 12 -
the Attorney General in a 1978 letter to the Chair of the
House Judiciary Committee:
Currently, a person is not eligible to file a
petition for naturalization in his own behalf
under [8 U.S.C. § 1445] until reaching the age
of 18. Thus, there is a 2-year period during
which a child is not able to derive
citizenship by reason of his parents’
naturalization, but is not able to file his
own petition for naturalization either. The
only procedure available during this period is
for the parent or parents to file a formal
petition for the child’s naturalization . . .
. This procedure is both cumbersome and
unnecessary. Young people between the age of
16 and 18 should be able to derive citizenship
automatically . . . .
H.R. Rep. No. 95-1301, reprinted in 1978 U.S.C.C.A.N.
2301, 2309-10. Evidently to meet this concern and
correct an unintended consequence of the 1952
formulation, a 1978 amendment changed the age requirement
in Section 321(a) from sixteen to eighteen. Act of Oct.
5, 1978, Pub. L. 95-417, §§ 4-5, 92 Stat. 917.
Langhorne, 377 F.3d at 181 (citations and alterations omitted).
Thus, the majority is correct that Congress amended the 1952
version of the derivative citizenship statute in 1978, enacting the
version at issue here, with the “underlying intention” of allowing
children to acquire citizenship derivatively from their parents,
and thereby keep together the family unit. Maj. Op. at 14. But it
did so only to ensure that children might acquire derivative
citizenship until they were of the age at which they could file
petitions on their own behalf. See 8 U.S.C. § 1445(b) (“No person
shall file a valid application for naturalization unless he shall
have attained the age of eighteen years.”). Because the natural
meaning of the requirement in § 1445(b) that a petitioner must have
“attained the age of eighteen years” is that the petitioner must
- 13 -
have turned eighteen on the date the petition is filed, cf.
Commonwealth v. A Juvenile, 545 N.E.2d 1164, 1164-65 & n.2 (Mass.
1989) (construing statute referring to “children who attain their
seventeenth birthday” as covering one who “attains the age of
seventeen”), it stands to reason that the language “under the age
of eighteen years” in §1432(a) should be construed as going up to
the day before a petitioner’s rights under § 1445(b) to file a
petition on his own behalf attach.
One wonders how the majority would interpret § 1445(b) in
light of its holding today. Both § 1445(b) and § 1432(a) turn on
when the person in question becomes eighteen years old. Cf.
Langhorne, 377 F.3d at 181 (“[T]he overarching statutory scheme
that was in place . . . was clearly keyed to the age of
eighteen.”). If the derivative citizenship statute means that
Duarte was still “under the age of eighteen” until the evening of
June 14, 1991, presumably he had not “attained the age of eighteen”
until that time. Thus, if the majority stands by its methodology,
it must conclude that had Duarte attempted to file a petition for
naturalization on his own behalf on June 14, 1991, he should have
been turned away under § 1445(b) until after the hour on which he
was born. With respect, this is what comes from using isolated
fragments of legislative history to vary the clear meaning of an
unambiguous statute. See Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 568 (2005) (“[T]he authoritative statement is
the statutory text, not the legislative history or any other
extrinsic material. Extrinsic materials have a role in statutory
- 14 -
interpretation only to the extent they shed a reliable light on the
enacting Legislature’s understanding of otherwise ambiguous terms.”
(emphasis added)).
The majority next purports to find support in the supposed
difference between § 1432(a) and statutes that refer specifically
to “birthdays,” such as 18 U.S.C. § 5031, setting forth the federal
definition of a juvenile. Maj. Op. at 14-16. See 18 U.S.C. § 5031(“[A] ‘juvenile’ is a person who has not attained his eighteenth
birthday, or for the purpose of proceedings and disposition under
this chapter for an alleged act of juvenile delinquency, a person
who has not attained his twenty-first birthday . . . .”). This
support, however, is anything but substantial. For the reasons
discussed above, any reasonable reader, keeping in mind the
statutes’ contexts and Congress’s evident purpose to draw a useable
age division line, would read the phrases “under the age of
eighteen years” in § 1432(a) and “has not attained his eighteenth
birthday” in § 5031 to be equivalent. And that, in fact, is
precisely what courts have done. See, e.g., United States v.
Ramirez, 297 F.3d 185, 190-91 (2d Cir. 2002) (construing § 5031 to
mean that the defendant must be “under twenty-one at the time the
juvenile information charging the crime is filed” (emphasis
added)); United States v. Pool, 937 F.2d 1528, 1532 (10th Cir.
1991) (“Federal law defines a juvenile as being under the age of 18
. . . .”).
The majority suggests that Congress’s selection of the
“birthday” language in § 5031 was a deliberate attempt to avoid the
- 15 -
supposed ambiguity that exists in § 1432(a). Maj. Op. at 15-16.
But the only ambiguity that Congress sought to avoid in the federal
definition of a juvenile concerned the question whether “a person
seventeen years of age or under,” which is how the former
definition read, see Act of June 16, 1938, ch. 486, 52 Stat. 764,
included those persons between their seventeenth and eighteenth
birthdays, or only those persons who had just turned seventeen
years of age.15 Courts have taken and continue to take divergent
views on this question: “Some courts have found that a clause
specifying a particular age ‘or under’ applies to the full year of
the stated age. . . . Other courts have reached a contrary
interpretation,” that one past, for instance, his sixteenth
birthday is no longer “a child of the age of sixteen years, or
under.” State v. Munoz, 228 P.3d 138, 140 (Ariz. Ct. App. 2010)
(internal quotation marks omitted); see also State v. Shabazz, 622
15
The historical notes to § 5031 indicate that the
“birthday” language was adopted after U.S. District Judge Arthur
J. Tuttle wrote to Congress stressing “the necessity of a
definite fixing of the age of the juvenile.” 18 U.S.C. § 5031(Notes to 1948 Acts); see also Maj. Op. at 15. Judge Tuttle’s
letter reveals that the ambiguity in the former version of the
juvenile definition resided in the phrase “seventeen years of age
or under,” which left uncertain the status of those persons who
had passed their seventeenth birthday but not yet reached their
eighteenth. “Some people will read [the phrase] and say that he
ceases to be a juvenile just as soon as the hands of the clock
pass midnight on the midnight which ends his seventeenth
birthday. Others read it and say, ‘No, it is a year later. He
continues to be a juvenile until midnight before his eighteenth
birthday.’” Letter from Arthur J. Tuttle to Eugene J. Keogh,
Chairman, Committee on Revision of the Laws, U.S. House of
Representatives (June 24, 1944) (on file in Arthur J. Tuttle
Papers, Bentley Historical Library, University of Michigan).
There is no indication in Judge Tuttle’s letter that he found
ambiguity in the former version of the juvenile statute as it
would apply to those “under” the age of seventeen.
- 16 -
A.2d 914, 918 (N.J. Super. Ct. App. Div. 1993) (collecting cases).
But this is ambiguity in what it means to be sixteen, seventeen, or
some other age, not in what it means to be “under” a given age.
Both sides of this debate agree that the “or under” language is not
ambiguous: it refers to a person before he reaches his birthday and
turns a year older. See, e.g., Munoz, 228 P.3d at 140 n.3
(“Undoubtedly, Arizona’s legislature could have expressed its
intent for the cutoff age more precisely by saying ‘under fifteen’
or ‘under sixteen.’ Instead, the legislature used the language
‘fifteen years of age or under’ . . . .”); id. at 142 (“We assume
the [legislature] intended to change the intended cutoff age when
it voted to approve the amendment to the bill from ‘under the age
of fifteen’ to ‘a child the age of fifteen years or under.’ Had
the legislature intended to protect only children less than fifteen
years of age, it would have left the proposed wording intact, as
the unmodified version clearly did not apply to any child who had
reached his fifteenth birthday.” (citation omitted)); State v.
Carlson, 394 N.W.2d 669, 673 (Neb. 1986) (“If ‘less than fourteen
years of age’ or ‘under fourteen years of age’ had been used in [a
Nebraska sexual assault statute], the protection of that statute
would terminate when a child reached the 14th birthday.”).
The majority also seeks support for its construction of §
1432(a) in Matter of L – M – and C – Y – C –, 4 I. & N. Dec. 617(B.I.A. 1952), a BIA decision never before cited by any federal
court or even relied on by the BIA itself in any of its own
subsequent cases. Maj. Op. at 16-17. The case involved a wholly
- 17 -
different statutory scheme. In L – M – , the statute at issue
provided that the foreign-born child of a U.S. citizen was a
citizen himself at birth, but that citizenship was lost if the
child “ha[d] not taken up a residence in the United States or its
outlying possessions by the time he reache[d] the age of 16 years
. . . .” L – M –, 4 I. & N. Dec. at 618 (quoting Nationality Act
of 1940, supra, § 201(g), 54 Stat. at 1139). Thus the question was
whether the petitioners, who were citizens of the United States,
were divested of that citizenship or whether they had complied with
this statutory “return requirement.” Granted, the BIA rejected
what was perhaps the more natural reading of the statute in favor
of a reading that comported with Congress’s apparent intent that
the statute be applied only to those who “by their own acts, or
inaction, show that their real attachment is to the foreign country
[in which they previously had been living] and not to the United
States.” Id. at 619.16 Thus the petitioners, who clearly evinced
a continued “attachment” to the United States by seeking to return
and arriving on their sixteenth birthdays, were not excluded. But
this outcome was consistent with other BIA cases, construing the
16
The BIA did not, as the majority suggests, hold that “the
method of arriving at the computation is to be in the interest of
the person affected by it” when considering citizenship claims.
Maj. Op. at 16 (quoting L – M –, 4 I. & N. Dec. at 620). The BIA
made this statement only in describing the reasoning of a
different case, In re Babjak, 211 F. 551 (W.D. Pa. 1914), which
involved a question entirely different from the one presented
here: when a statute required a citizenship petition to be filed
“no[] more than 7 years” after the applicant “ha[d] made [a]
declaration of intention,” and the applicant filed his petition
seven years to the day after his declaration, whether the court
had jurisdiction to consider the petition. Babjak, 211 F. at
552.
- 18 -
same or similar provisions, concluding that a citizen child would
not be divested of citizenship even when he did not return but
rather “when [he only] proceeded with due diligence to comply but
his compliance with the physical presence requirement [was]
prevented by official error or inaction.” 7 Charles Gordon,
Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and
Procedure § 93.02(6)(d) (Matthew Bender, Rev. Ed. 2010); see also
id. nn. 148-50 (citing cases). Significantly, moreover, the BIA
has never extended this reasoning to statutes governing the
creation of citizenship. Indeed, L – M – took pains to stress that
the statutory return requirement was a “condition[] subsequent and
not [a] condition[] precedent” to citizenship, L – M –, 4 I. & N.
Dec. at 618 (emphasis added), and that “a distinction should be
made between the computation of the time within which a right may
begin and the computation of the time within which a right shall
end,” id. at 620. There is a good reason here for drawing such a
distinction: one who is divested of citizenship loses the
privilege, but one who does not meet the qualifications for
acquiring citizenship derivatively merely has to apply on his own
behalf.17
To the extent the majority suggests we must defer to the
17
BIA’s interpretation of the statute at issue in L – M –, see Maj.
Op. at 10 n.2, it is incorrect. As explained, L– M – dealt with
a different statute in a different context. Further, to the
extent L – M – could be read to bear on the question before us,
the BIA has clearly changed its view since 1952. See Matter of
Baires-Larios, 24 I. & N. Dec. 467, 468 (B.I.A. 2008) (“We agree
with the respondent that she has met the requirements of section
321(a) of the Act if she came into her father’s legal custody
prior to reaching her 18th birthday . . . .”); 8 Gordon, Mailman,
and Yale-Loehr, supra, § 98.03(3)(e) (“The administrative view is
- 19 -
The majority’s remaining arguments in favor of its
interpretation merit little discussion. Because we are
interpreting a statute, this case does not involve the “legal
fiction” that “a day is indivisible,” Maj. Op. at 11, except to the
extent that this “fiction” reflects our ordinary understanding of
when a person is “over” or “under” a certain age. And we must
presume, unless it has given us reason to think otherwise, that
Congress intends the ordinary meaning of words when it uses those
words in statutes. See, e.g., Mitsui & Co. v. Am. Exp. Lines,
Inc., 636 F.2d 807, 814 (2d Cir. 1981). Because it was also the
rule at common law that the law will not recognize fractions of a
day, see, e.g., Parker v. State, 484 A.2d 1020, 1021-22 (Md. Ct.
Spec. App. 1984), we must also presume that Congress legislated
“against [the] background of [that] common-law principle[],”
Samantar v. Yousuf, 130 S. Ct. 2278, 2289 n.13 (2010) (internal
quotation marks and alteration omitted). Nothing in the derivative
citizenship statute rebuts these presumptions.
Finally, even if § 1432(a) contained an ambiguity — which it
does not — the majority ignores the principle of statutory
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 of the child’s birth.” (citing INS
Interpretations 320.2)). In any event, the Chevron deference
question is, for me, ultimately not relevant because the language
of § 1432(a) is sufficiently clear that Congress can be
considered to have “directly spoken to the precise question at
issue,” Chevron U.S.A., Inc. v. Natural Res. Defense Council,
Inc., 467 U.S. 837, 842 (1984); see also Langhorne, 377 F.3d at
179, 181 — the “precise question” being what age a person must be
to acquire citizenship derivatively.
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construction that “an ambiguous statute must be construed to avoid
absurd results.” Rotimi v. Holder, 577 F.3d 133, 142 (2d Cir.
2009) (per curiam) (quoting Troll Co. v. Uneeda Doll Co., 483 F.3d
150, 160 (2d Cir. 2007)) (internal quotation marks omitted). The
majority’s reading of the text is not only implausible in and of
itself but also leads to absurdity — for it would be clearly
unreasonable to require courts to ascertain the precise minute and
hour of relevant events when applying statutes that include age
distinctions:
If we were to hold that a juvenile becomes an adult at
the precise hour of his or her birth . . . not only would
it be necessary for the state to prove the precise hour,
minute, and second of the alleged offense, but the state
would also have to prove the precise hour, minute, and
second of the individual’s birth. In addition, courts
would be required to deal with other peripheral issues,
such as different time zones across the United States, or
even across the world, and the inconsistent use of
daylight-savings time. While . . . these issues are not
completely impossible to remedy, they seem unreasonable
or absurd when compared to the practical and commonly
practiced solution of treating a person as a year older
at 12:01 a.m. local time on their birthday.
Yarger, 908 N.E.2d at 468-69. Yet again, if the statute here truly
were susceptible to multiple meanings, as the majority thinks, the
decision which to apply is perfectly clear.
***
Our power to grant citizenship is limited; it is “a specific
function to be performed in strict compliance with the terms of an
authorizing statute which says that ‘a person may be naturalized in
the manner and under the conditions prescribed in this subchapter
[including former § 1432(a)], and not otherwise.” Pangilinan, 486
U.S. at 884 (alterations omitted) (quoting 8 U.S.C. § 1421(d)). We
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may not circumvent this principle, as the majority does, by
implausibly construing those clear and unambiguous statutory
requirements. I respectfully dissent.
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