Monssef Cheneau v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONSSEF CHENEAU, No. 15-70636
Petitioner,
Agency No.
v. A077-279-939
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted En Banc March 22, 2021*
San Francisco, California
Filed May 13, 2021
Before: Sidney R. Thomas, Chief Judge, and M. Margaret
McKeown, Kim McLane Wardlaw, Richard A. Paez,
Morgan Christen, Mark J. Bennett, Eric D. Miller, Daniel
A. Bress, Danielle J. Hunsaker, Patrick J. Bumatay, and
Lawrence J. VanDyke, Circuit Judges.
Opinion by Chief Judge Thomas;
Dissent by Judge Bress
*
The en banc court unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 CHENEAU V. GARLAND
SUMMARY**
Immigration
Remanding to the three-judge panel that previously
denied Monssef Cheneau’s petition for review of a decision
of the Board of Immigration Appeals, the en banc court held
that the second clause of the derivative citizenship statute set
out at former 8 U.S.C. § 1432(a)(5) does not require that the
child have been granted lawful permanent residency prior to
the age of eighteen in order to derive citizenship from a
parent who naturalized, but the child must have demonstrated
an objective official manifestation of permanent residence.
Former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000)
provides two different pathways to child of a naturalized
parent to derive U.S. citizenship: 1) a child “residing in the
United States pursuant to a lawful admission for permanent
residence at the time of the naturalization of the parent” is
eligible; and 2) a child is eligible who “thereafter begins to
reside permanently in the United States while under the age
of eighteen years.”
Cheneau entered the United states lawfully at age thirteen
under a non-immigrant student visa. His mother naturalized
in 1999, he applied for adjustment of status to lawful
permanent resident at age fifteen in 2000, and was granted
adjustment of status in 2003, after he turned eighteen. After
theft convictions, removal proceedings were initiated, and
Cheneau moved to terminate, asserting a claim of derivative
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHENEAU V. GARLAND 3
citizenship. The three-judge panel in this case held that it was
required to hold that Cheneau was not a derivative citizen
under either pathway because this court, in Romero-Ruiz v.
Mukasey, 538 F.3d 1057 (9th Cir. 2008), had held that both
pathways required the child to have lawful permanent
resident status.
Reconsidering Romero-Ruiz in the present context, the en
banc court concluded that Congress did not intend to require
lawful permanent residency for the second pathway. First,
the en banc court observed that Congress chose to use two
different terms in the statute, creating a presumption that the
terms have different meanings. Second, the en banc court
explained that the two terms have different meanings in the
Immigration and Nationality Act (“INA”). Third, the en banc
court concluded that construing the second pathway to
derivative citizenship as not requiring lawful permanent
residence does not render either provision superfluous, as the
court suggested in Romero-Ruiz. Rather, each pathway
applies distinct requirements to distinct categories of children
with distinct timing, and does so with logical reason. Finally,
the en banc court explained that Congress’s decision to
eliminate the “reside permanently” pathway and narrow the
availability of derivative citizenship in 2000 indicates that the
previous version of the statute was broader.
The en banc court also explained that the history of the
INA (which was enacted in 1952 and established lawful
permanent residency as a term of art) and earlier
naturalization statutes further buttressed its conclusion that
Congress intended “reside permanently” and “lawful
admission for permanent residence” to have different
meanings. Further, the en banc court concluded that the tenet
of statutory construction that repetition of the same language
4 CHENEAU V. GARLAND
in a new statute generally indicates the intent to incorporate
its administrative and judicial interpretations as well did not
apply, because none of the administrative or judicial
interpretations preceding the INA had “settled” whether
“reside permanently” could mean lawfully residing on a
temporary visa with the intent to remain permanently.
Finally, the en banc court agreed with the Second Circuit
that, to satisfy the “reside permanently” requirement in the
second pathway, an individual must demonstrate “some
objective official manifestation of the child’s permanent
residence.” Here, the en banc court explained, Cheneau filed
an application for adjustment of status after his mother
naturalized, expressing such intent to reside permanently.
Dissenting, Judge Bress, joined by Judges Hunsaker,
Bumatay, and VanDyke, wrote that the en banc court’s
decision adopted the very “unreasonable” reading of the
statute that Romero-Ruiz had rejected. Judge Bress
concluded that the new interpretation: 1) is an untenable
construction of the statutory text; 2) fails to account for
decades of statutory history in which derivative citizenship
necessarily required lawful permission to reside permanently
in the United States—the legal backdrop against which the
statutory language “reside permanently” has long existed in
our immigration law: and 3) produces significant problems of
practical administration, creating confusion as to who
qualifies for derivative citizenship while extending derivative
citizenship without authorization to a potentially wide range
of additional people—including people like the petitioner in
this case, who committed crimes in this country and who
might otherwise be removable.
CHENEAU V. GARLAND 5
COUNSEL
Kari E. Hong, Boston College Law School, Newton,
Massachusetts, for Petitioner.
Craig A. Newell Jr., Trial Attorney; Emily Anne Radford,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Brian P. Goldman and Sachi Schuricht, Orrick Herrington &
Sutcliffe LLP, San Francisco, California, for Amici Curiae
ACLU of Southern California, Al Otro Lado, Federal
Defenders of San Diego Inc., Florence Immigrant and
Refugee Rights Project, Northwest Immigrant Rights Project,
Public Counsel, Margaret Stock, U.C. Davis Immigrant Law
Clinic, and Unified U.S. Deported Veterans Resource Center.
Sabrineh Ardalan and Philip L. Torrey, Attorneys; George
Biashvili, Salah Muhiddin, and Michael Shang, Law
Students; Harvard Immigration and Refugee Clinical
Program, Cambridge, Massachusetts; for Amici Curiae
Immigration Law Scholars.
6 CHENEAU V. GARLAND
OPINION
THOMAS, Chief Judge:
We voted to rehear this case en banc to consider the
requirements for two different pathways by which a child of
a naturalized citizen parent can derive U.S. citizenship under
former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000). Under
the first pathway, a child “residing in the United States
pursuant to a lawful admission for permanent residence at the
time of the naturalization of the parent” is eligible for
derivative citizenship; under the second, a child is eligible
who “thereafter begins to reside permanently in the United
States while under the age of eighteen years.” Id.A three-judge panel of this court previously interpreted
this statute, holding that both pathways required the child to
have lawful permanent resident status. See Romero-Ruiz v.
Mukasey, 538 F.3d 1057, 1062–63 (9th Cir. 2008). In re-
examining Romero-Ruiz, we now conclude that the phrase “or
thereafter begins to reside permanently in the United States,”
8 U.S.C. § 1432(a)(5), does not require that the child have
necessarily been granted lawful permanent residency,
although the child must have demonstrated an objective
official manifestation of permanent residence. With this
clarification, we remand this case to its three-judge panel so
that the panel may, in its discretion, apply the revised rule to
this case.
I
The facts of the case are detailed in the panel opinion, and
we need not recount them here in detail. See Cheneau v.
Barr, 971 F.3d 965, 966–67 (9th Cir. 2020). In brief,
CHENEAU V. GARLAND 7
Cheneau entered the United States lawfully at age thirteen
under a non-immigrant student visa. Id. at 966. His mother
was naturalized in 1999, and he applied for adjustment of
status to lawful permanent resident at age fifteen, in 2000. Id.Due to an administrative error, he was not granted adjustment
of status until 2003, after he had turned eighteen. Id.at 966–67. Years later, the Department of Homeland Security
initiated removal proceedings after Cheneau’s convictions for
various theft offenses. Id. at 967. Cheneau moved to
terminate, asserting a claim of derivative citizenship. Id.The three-judge panel held, in a per curiam opinion, that
under Romero-Ruiz the panel was required to hold that
Cheneau was not a derivative citizen under either pathway of
§ 1432(a)(5). See Cheneau, 971 F.3d at 969–70. The
applicable statute provides that a child born outside the
United States may obtain derivative citizenship on the basis
of a parent’s naturalization if:
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 . . . or thereafter begins to reside
permanently in the United States while under
the age of eighteen years.
8 CHENEAU V. GARLAND
8 U.S.C. § 1432(a)(5) (1994) (emphasis added).1 The
Cheneau panel concluded that, since “under [Romero-Ruiz]
‘lawful admission for permanent residence’ is required by
both provisions of clause (5),” Cheneau was not eligible for
derivative citizenship. 971 F.3d at 969.
However, the entire panel joined a concurring opinion,
authored by Judge Bennett, encouraging this Court to revisit
Romero-Ruiz. The concurrence noted that “Congress chose
two different phrases—one that refers to status while the
other refers to actual residence”—that “have been used in
other sections of the [Immigration and Nationality Act
(“INA”)] to mean different things.” Cheneau, 971 F.3d at 977
(Bennett, J., concurring). The concurrence urged
reexamination because Romero-Ruiz “was phrased too
1
Section 1432 was repealed in 2000 and replaced with a new
derivative citizenship provision, codified at 8 U.S.C. § 1431(a). The panel
addressed the applicability of § 1432(a)(5) (1994) in Cheneau’s case
because “[t]he applicable version [of the statute] is the one that was ‘in
effect at [the] time the critical events giving rise to eligibility occurred.’”
Cheneau, 971 F.3d at 968 (quoting Minasyan v. Gonzales, 401 F.3d 1069,
1075 (2005)). Which statute applied depended on whether the critical
event was Cheneau’s application for adjustment of status, filed in 2000,
or his actually obtaining lawful permanent resident status in 2003.
Whether either event qualified as the “critical event[] giving rise to
eligibility” depended on the interpretation of § 1432(a)(5). If the statute
required lawful permanent resident status under each pathway, then
Cheneau’s 2003 acquiring of such status would be the critical event; if
only some objective manifestation of “residing permanently” was
necessary under the second pathway, then his 2000 application for
adjustment of status would be the critical event. See Cheneau, 971 F.3d
at 968–69. The panel concluded that “[u]nder Romero-Ruiz, the critical
event of Cheneau obtaining lawful permanent resident status happened in
2003, more than two years after § 1432(a) was repealed, and that section
is therefore not applicable.” Id. at 970 (applying 8 U.S.C. § 1431(a)
instead).
CHENEAU V. GARLAND 9
broadly and established a rule that, although understandable
in the circumstances presented in that case, leads to an
incorrect result when applied here.” Id. at 970.
II
In Romero-Ruiz, we initially considered the construction
of § 1432(a)(5), addressing “the question of whether an
immigrant who did not have lawful permanent resident status
at the time of his mother’s naturalization is eligible for
derivative citizenship.” 538 F.3d at 1060. Born in Mexico in
1981, Romero-Ruiz entered the United States without
admission in 1985, lived in the United States without lawful
status, and applied for adjustment of status at age seventeen
after his mother naturalized. Id. However, while his
application was pending, he left the country. Id. We held
that both pathways required that a child have lawful
permanent resident status as a prerequisite to obtaining
derivative citizenship, since “[t]he phrase ‘or thereafter
begins to reside permanently’ alters only the timing of the
residence requirement, not the requirement of legal
residence.” Id. at 1062. In doing so, we conducted a
surplusage analysis, concluding that “[t]o interpret the second
clause as conferring derivative citizenship on children who
otherwise meet the requirements as long as they are
permanently living in the United States would render the first
clause—requiring legal permanent residence—superfluous.”
Id.Subsequently, other circuits have interpreted the statute
differently. The Second Circuit in Nwozuzu v. Holder,
726 F.3d 323 (2d Cir. 2013), declined to read a lawful
permanent residence requirement into the second pathway.
The court concluded that the second pathway permitted a
10 CHENEAU V. GARLAND
minor to derive citizenship if, after a parent’s naturalization,
he “‘beg[an] to reside permanently in the United States while
under the age of eighteen years’—irrespective of whether he
had been lawfully admitted for permanent residence before
turning eighteen.” Id. at 329 (alteration in original) (quoting
8 U.S.C. § 1432(a)(5)). Similarly, although declining to
adopt either construction of the statute, the First Circuit noted
“contrary indications” that point to “reside permanently” not
being “just a shorthand for ‘resid[e] . . . pursuant to a lawful
admission for permanent residence.’” Thomas v. Lynch,
828 F.3d 11, 15 (1st Cir. 2016) (alteration and omission in
original) (concluding that Thomas was not entitled to
derivative citizenship under either construction, id.at 17–18).2
III
“As with any question of statutory interpretation, our
analysis begins with the plain language of the statute.”
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (citation
omitted). “[W]hen deciding whether the language is plain,
[we] must read the words ‘in their context and with a view to
their place in the overall statutory scheme.’” King v. Burwell,
576 U.S. 473, 486 (2015) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). In
addition, we examine the statutory structure and “other
traditional aids of statutory interpretation” in order to
2
By contrast, the Eleventh Circuit agreed with our reasoning in
Romero-Ruiz, and held that lawful permanent residency was required for
§ 1432(a)(5)’s second pathway. See United States v. Forey-Quintero,
626 F.3d 1323, 1327 (11th Cir. 2010) (agreeing with Romero-Ruiz that
“requiring anything less than the status of lawful permanent resident
would essentially render the first clause of subsection 5 ‘mere
surplusage’”).
CHENEAU V. GARLAND 11
ascertain congressional intent. Middlesex Cnty. Sewerage
Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13 (1981).
As part of our statutory analysis, “[w]e also look to similar
provisions within the statute as a whole and the language of
related or similar statutes to aid in interpretation.” United
States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013).
In reconsidering Romero-Ruiz in the present context, we
are persuaded that the language of Romero-Ruiz swept too
broadly and requires modification. Our conclusion is based
on the text of the statute itself, the legislative history of
derivative citizenship provisions, and the application of
traditional tools of statutory interpretation. Ultimately, we
conclude that Congress did not intend to require lawful
permanent residency for the second pathway to derivative
citizenship under the prior statute.
A
As always, we begin with the plain words of the statute,
employing the familiar canons of statutory construction.
Bottinelli v. Salazar, 929 F.3d 1196, 1199 (9th Cir. 2019). In
doing so, we are mindful of “the usual rule that when the
legislature uses certain language in one part of the statute and
different language in another, the court assumes different
meanings were intended.” Sosa v. Alvarez-Machain,
542 U.S. 692, 711 n.9 (2004) (internal quotation marks and
citation omitted). Several features of the text of the statute
persuade us that the second pathway of § 1432(a)(5) does not
require lawful permanent residency.
First, Congress chose to use two different terms in the
statute. “[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
12 CHENEAU V. GARLAND
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432
(1987) (alteration in original) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)). This presumption applies
with even greater force here, where Congress used particular
language in one provision and not in another provision of the
same subsection of the same statute. See Cheneau, 971 F.3d
at 972 (Bennett, J., concurring). And, because the term
“reside permanently” was carried over from earlier derivative
citizenship statutes predating the introduction of the term of
art “lawful admission for permanent residence” in the 1952
INA, see Citizenship Act of 1907, ch. 2534, § 5, 34 Stat.
1228, 1229 (repealed 1940), Congress would not have
intended “reside permanently” to be a shorthand for “lawful
admission for permanent residence.” Therefore, from the
outset we presume that the terms have different meanings.
Second, the terms “lawful admission for permanent
residence” and “reside permanently” have different meanings
in the INA. The term “lawful admission for permanent
residence” is explicitly defined as a particular legal status:
“‘lawfully admitted for permanent residence’ means the
status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed.” 8 U.S.C. § 1101(a)(20); see also Gooch v. Clark,
433 F.2d 74, 78 (9th Cir. 1970) (describing “lawfully
admitted for permanent residence” as a “term of art”). By
contrast, the term “reside permanently” is not itself defined,
although derivations of each word are defined separately.
“The term ‘permanent’ means a relationship of continuing or
lasting nature, as distinguished from temporary, but a
relationship may be permanent even though it is one that may
CHENEAU V. GARLAND 13
be dissolved eventually at the instance either of the United
States or of the individual, in accordance with law.” 8 U.S.C.
§ 1101(a)(31). “The term ‘residence’ means the place of
general abode; the place of general abode of a person means
his principal, actual dwelling place in fact, without regard to
intent.” Id. § 1101(a)(33). The definitions do not refer to a
specific legal status or require lawful admission.
The term “reside permanently” appears elsewhere in the
INA, but not as a synonym for “lawful admission for
permanent residence.” See id. § 1438 (describing a process
by which a former U.S. citizen who had lost his or her
citizenship by fighting for another country in World War II
could regain citizenship if he or she “has been lawfully
admitted to the United States for permanent residence and
intends to reside permanently in the United States” (emphasis
added)). Other INA provisions that were contemporaneous
with § 1432(a) and have since been repealed used the terms
as separate requirements, rather than one as a shorthand for
the other. See id. § 1433(a)(5)(A) (1994) (“[T]he child is
residing permanently in the United States with the citizen
parent, pursuant to a lawful admission for permanent
residence . . . .”); id. § 1431(a)(2) (1994) (providing for
derivative citizenship for children born outside the United
States of one citizen parent if they were “residing in the
United States pursuant to a lawful admission for permanent
residence at the time of naturalization or thereafter and
begin[] to reside permanently in the United States while
under the age of eighteen years” (emphasis added)).
Third, construing the second pathway to derivative
citizenship as not requiring lawful permanent residence does
not render either provision superfluous, as we suggested in
Romero-Ruiz. See 538 F.3d at 1062 (referring to someone
14 CHENEAU V. GARLAND
who is “residing permanently” in the United States as
someone “who otherwise meet[s] the requirements” of lawful
permanent residency). The first pathway “addresses the class
of minors who were ‘lawfully admitted for permanent
residence’ at the time [their] parent was naturalized; they
automatically derived citizenship upon the parent’s
naturalization.” Nwozuzu, 726 F.3d at 329. The second
pathway, on the other hand, “addresses minors who, at the
time [their] parent was naturalized, either lived abroad or
lived in the United States but had not been ‘lawfully admitted
for permanent residence.’” Id. These minors were subject to
a different set of requirements, as they “did not derive
citizenship automatically upon the parent’s naturalization;
rather, they derived citizenship automatically, but only after
they resided in the United States and garnered some ‘official
objective manifestation’ of their intent to reside
permanently.” Id. (emphasis in original).
Our interpretation is thus in perfect conformity with the
“‘cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)). Under our interpretation, each pathway applies
distinct requirements to distinct categories of children with
distinct timing, and does so with “logical reason.” Nwozuzu,
726 F.3d at 331. It is not a “significant surplusage problem”
that “a child otherwise meeting the qualifications becomes a
citizen if he is residing in the United States as a legal
permanent resident at the time of his parent’s naturalization
or if he is residing permanently in the United States
(regardless of legal status) at the time of the naturalization.”
Romero-Ruiz, 538 F.3d at 1062 (emphasis in original).
CHENEAU V. GARLAND 15
Rather, that is likely the very framework that Congress
intended, one that addresses the dual objectives of
administrative efficiency3 and family unity within our
immigration system. See Stone v. INS, 514 U.S. 386, 398
(1995) (noting the “[u]nderlying considerations of
administrative and judicial efficiency” in the INA); Legal
Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469, 472 (D.C. Cir. 1995) (“In originally enacting the
INA, Congress implemented the underlying intention of our
immigration laws regarding the preservation of the family
unit.” (quotation marks, citation, and alteration omitted)),
vacated on other grounds, 519 U.S. 1 (1996).4
3
As the Second Circuit explained in Nwozuzu, “[r]equiring lawful
admission for permanent residence at the time of the parents’
naturalization [under the first pathway] provided an administratively
convenient way of determining which children intended to remain with
their parents and thus would become citizens at the time their parents were
naturalized.” 726 F.3d at 331. On the other hand, “[i]mposing such a
requirement on minor children either living abroad or residing temporarily
in the United States at the time of their parents’ naturalization . . . would
have been a meaningless formality,” given that “children in this situation
automatically acquired citizenship once they were residing in the United
States and demonstrated their objective intent to remain ‘permanently.’”
Id. at 331–32. Requiring lawful admission for permanent residence under
the second pathway “also would have unnecessarily delayed their entry
into the country, making it difficult to begin to reside permanently in the
United States while under the age of eighteen years and jeopardizing their
chances of deriving citizenship from their parents. Congress clearly
intended a different result.” Id. at 332 (quotation marks and citation
omitted).
4
Our surplusage analysis in Romero-Ruiz also assumed that everyone
who has lawful permanent residency must necessarily also be residing
permanently in the United States, and therefore, if the phrases did have
different meanings, the second provision would swallow the first. See
538 F.3d at 1062–63; see also Cheneau, 971 F.3d at 973–74 (Bennett, J.,
concurring). However, that is not necessarily so. Someone with lawful
16 CHENEAU V. GARLAND
By contrast, reading the statute to require lawful
permanent resident status for both pathways such that “[t]he
phrase ‘or thereafter begins to reside permanently’ alters only
the timing of the residence requirement,” Romero-Ruiz,
538 F.3d at 1062 (emphasis in original), is unlikely what
Congress intended. As the Cheneau concurrence observed,
if both pathways required lawful permanent residency, “it is
permanent resident status may not permanently reside in the United States
within the meaning of the INA, for example. See, e.g., Gooch, 433 F.2d
at 76, 79 (holding that “green card commuters” can be lawfully admitted
for permanent residence despite physically residing in Canada or Mexico
and crossing the border to work).
The reverse is also true: an individual may reside permanently in the
United States without lawful permanent resident status. In Nwozuzu, the
Second Circuit observed that “there are a number of groups that are
permitted to stay in this country permanently without being lawful
permanent residents, including crewm[e]n on fishing vessels and
nonimmigrant alien students (G-4 visa holders).” 726 F.3d at 333. The
Government disputes the characterization, arguing that no one can
lawfully “reside permanently” in the United States without lawful
permanent resident status, noting that alien seamen “must adhere to the
conditions of their non-immigrant status [and] do not have permission to
reside permanently in the United States for as long as they may like
outside of their employment.” However, this argument applies a different
understanding of the word “permanent” than the INA does. See 8 U.S.C.
§ 1101(a)(31) (“[A] relationship may be permanent even though it is one
that may be dissolved eventually at the instance either of the United States
or of the individual, in accordance with law.”). Under this definition, even
if a G-4 visa holder, for example, is still subject to the terms of their visa
requirements and their presence “may be dissolved,” they still fall within
the INA’s definition of “permanent.” See Elkins v. Moreno, 435 U.S. 647,
666–67 (1978) (“Of course, should a G-4 alien terminate his employment
with an international treaty organization, both he and his family would
lose their G-4 status. Nonetheless, such an alien would not necessarily be
subject to deportation nor would he have to leave and re-enter the country
in order to become an immigrant.” (citation omitted)). Thus, we agree
with Cheneau that the “categories” do not completely “overlap.”
CHENEAU V. GARLAND 17
difficult to imagine why Congress would write two provisions
that use different words but mean the same thing, when it
could have written one provision along the lines of ‘pursuant
to a lawful admission for permanent residence at the time of
naturalization or thereafter.’” 971 F.3d at 974 (Bennett, J.,
concurring); see, e.g., 8 U.S.C. § 1431(a)(2) (1994) (granting
derivative citizenship to children who satisfy certain
requirements, including “residing in the United States
pursuant to a lawful admission for permanent residence at the
time of naturalization or thereafter” (emphasis added)).
Finally, Congress’s decision to eliminate the “reside
permanently” pathway and narrow the availability of
derivative citizenship in 2000 indicates that the previous
version of the statute was broader. Congress revised the
derivative citizenship statute in 2000 to include three
preconditions for derivative citizenship: (1) one parent is a
citizen; (2) the child is under 18 years old; and (3) “[t]he
child is residing in the United States in the legal and physical
custody of the citizen parent pursuant to a lawful admission
for permanent residence.” 8 U.S.C. § 1431(a); see Child
Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631,
1631–33. The 2000 revision eliminated any alternate
pathway for individuals “residing permanently” in the United
States. Standing alone, this revision may not compel the
conclusion that Congress intended to limit derivative
citizenship in the former statute to lawful permanent residents
in the subsequent statutes. Combined with the other evidence
that “lawful admission for permanent residence” and “reside
permanently” have different meanings, however, Congress’s
revision was likely a conscious choice to eliminate one
pathway and require lawful permanent residency for all
claims to derivative citizenship.
18 CHENEAU V. GARLAND
B
The history of the INA and previous naturalization
statutes further buttresses our conclusion that Congress
intended “reside permanently” and “lawful admission for
permanent residence” to have different meanings. See
generally Nwozuzu, 726 F.3d at 329–32 (discussing the
statutory history of the derivative citizenship provision). The
statute carried over the language of “reside permanently”
from prior naturalization laws, while adding the new term of
art of “lawful admission for permanent residence.”
In 1907, Congress first incorporated the “reside
permanently” language into the derivative citizenship statute.
See Citizenship Act of 1907, ch. 2534, § 5, 34 Stat. 1228,
1229 (repealed 1940) (providing for derivative citizenship of
a child after “such minor child begins to reside permanently
in the United States”). The next major revision in the
Nationality Act of 1940 separated out the two pathways for
citizenship and continued the use of that language: a child
could derive citizenship if she either was “residing in the
United States at the time of the naturalization of the parent,”
or “thereafter beg[an] to reside permanently in the United
States while under the age of eighteen.” Ch. 876, § 314(e),
54 Stat. 1137, 1146 (repealed 1952).
In 1952, the INA established lawful permanent residency
as a term of art describing a new legal status. See H.R. Rep.
No. 82-1365, at 32 (1952), reprinted in 1952 U.S.C.C.A.N.
1653, 1684 (describing “lawfully admitted for permanent
residence” as a term with “especial significance because of its
application to numerous provisions of the bill”). In the INA,
Congress established the statute in the form that it remained
until 2000, adding in a requirement for “lawful admission for
CHENEAU V. GARLAND 19
permanent residence” in the first pathway. INA, ch. 477,
§ 321, 66 Stat. 163, 245 (1952) (codified as amended at
8 U.S.C. § 1432(a)(5) (1994)) (repealed 2000). At the time,
a Senate Report described the addition of such language to be
a “minor change[] in the law relating to derivative
citizenship,” S. Rep. No. 81-1515, at 712–13 (1950), but a
change nonetheless—not a simple rewording of a “reside
permanently” requirement in prior iterations of the derivative
citizenship statute. And although a Senate subcommittee
initially contemplated applying that change to “all persons
taking citizenship derivatively,” id. at 713, this change was
not enacted. Congress’s ultimate decision to maintain two
separate pathways and only add this new term of art to one of
them supports the conclusion that Congress did not intend for
lawful permanent resident status to be a prerequisite to both
pathways, especially given the choice to retain the preexisting
precondition for derivative citizenship that did not require
lawful permanent residence.
Thus, our interpretation of “reside permanently” is not
“ahistorical.” We disagree with the dissent that there is
“significant evidence that the statutory phrase required then,
and requires now, that a child have lawful permission to
reside here permanently to secure derivative citizenship.”
Our construction is not contrary to the opinions,
administrative decisions, and treatises interpreting the phrase
in the 1907 and 1940 Acts, as the dissent suggests. Notably,
not one cited opinion, decision, or treatise, held that a child
needed lawful permission to reside in this country
permanently to derive citizenship from his parents. Rather,
all of the cited precedent held only that a child’s entry must
have been lawful, and that was the basis for holding that they
were not lawfully admitted for permanent residence. See
Kaplan v. Tod, 267 U.S. 228, 229 (1925) (child was ordered
20 CHENEAU V. GARLAND
excluded before ever entering the country); Zartarian v.
Billings, 204 U.S. 170, 172 (1907) (child was “debarred from
landing” before ever entering the country); Schneider v. U.S.
INS, 65 F. Supp. 377, 380 (W.D. Wash. 1946), aff’d, 161 F.2d
1022 (9th Cir. 1947) (child did not have a “legal entry”
because the INS failed to record his entry); United States ex
rel. Garos v. Reimer, 24 F. Supp. 869, 869–70 (S.D.N.Y.
1938) (child’s mother lied on his behalf in his initial visa
application), aff’d, 97 F.2d 1019 (2d Cir. 1938); Matter of
C—, 8 I. & N. Dec. 421, 421 (BIA 1959) (child was
mistakenly admitted without a United States passport or an
immigration visa); Matter of M—, 3 I. & N. Dec. 815, 816
(BIA 1949) (child was mistakenly admitted under a provision
that did not apply to her).
Therefore, the “tenet[] of statutory interpretation” that
“repetition of the same language in a new statute indicates, as
a general matter, the intent to incorporate its administrative
and judicial interpretations as well” does not apply, because
none of the administrative or judicial interpretations
preceding the 1952 Act had “settled” whether “reside
permanently” could mean lawfully residing on a temporary
visa with the intent to remain permanently.5 Cheneau’s entry
5
The same 1952 Senate Report discussed earlier also describes the
history of derivative citizenship statutes, stating: “Lawful permanent
residence has always been a prerequisite to derivative citizenship,” and
further explaining that “[t]here must be a bona fide intent to reside
permanently in the United States.” S. Rep. No. 81-1515, at 707 (1950)
(emphasis added). In the previous paragraph, the Report details the same
predecessor statutes we mention, each of which is presence-based rather
than status-based. See id. at 706 (referencing inter alia the Citizenship
Act of 1907 and the Nationality Act of 1940). This context further
indicates that the meaning of “lawful permanent residence” in this
sentence may have meant lawful residence with an intent to remain
CHENEAU V. GARLAND 21
was lawful, and he intended to reside permanently, so it is not
“ahistorical” to conclude that he “resided permanently” in the
United States prior to turning eighteen for purposes of
deriving citizenship from his mother.
IV
Even though the second pathway to derivative citizenship
does not require lawful permanent residence under the former
statute, we agree with the Second Circuit in Nwozuzu that, to
satisfy the “reside permanently” requirement in the second
pathway, an individual must demonstrate “some objective
official manifestation of the child’s permanent residence.”
726 F.3d at 333 (citation omitted). Such a measure ensures
that an applicant is genuinely complying with the “reside
permanently” requirement. The rule proposed by the dissent
involves reading other language into the statute. The word
“lawful” is conspicuously absent from the second pathway.
While we interpret the words that are in the statute—“reside
permanently”—the dissent would have us impose a
substantive requirement that Congress clearly did not include
in the second pathway—“lawful” permanent residence. We
cannot go so far. See United States v. Jackson, 390 U.S. 570,
580 (1968) (“It is one thing to fill a minor gap in a statute—to
extrapolate from its general design details that were
inadvertently omitted. It is quite another thing to create from
whole cloth a . . . completely novel [requirement] . . . .”).
Here, Cheneau filed an application for adjustment of
status to lawful permanent resident status after his mother
naturalized, expressing his intent to reside permanently in the
permanently, and at the very least it does not demonstrate that the meaning
is “settled” to the contrary.
22 CHENEAU V. GARLAND
United States. See Cheneau, 971 F.3d at 966; see also
Nwozuzu, 726 F.3d at 334 (“[Nwozuzu’s] application of
adjustment to lawful permanent resident status . . . is an
objective and official manifestation of his intent to reside
permanently in the United States.”).6
V
In sum, the Cheneau panel properly concluded that it was
bound under circuit precedent by Romero-Ruiz. The panel
then properly highlighted the problems in applying the
Romero-Ruiz analysis of § 1432(a)(5) in the present context.
In reconsidering Romero-Ruiz, we agree with Judge Bennett’s
concurring opinion that Romero-Ruiz must be overruled to the
extent that it interpreted “reside permanently” to require
lawful permanent resident status. Instead, we conclude that
the second pathway to derivative citizenship under the former
statute requires that an applicant demonstrate an objective
official manifestation of permanent residence, such as
applying for adjustment of status to lawful permanent
resident status. However, with that correction, Romero-Ruiz
in all other respects remains good law.
6
Conversely, although Romero-Ruiz filed an application for
adjustment of status, he abandoned that application when he departed the
country knowing that he needed to remain in the United States while his
application was pending. See Romero-Ruiz, 538 F.3d at 1060.
Furthermore, unlike Cheneau, Romero-Ruiz unlawfully entered the United
States. Id. Even under the rule we establish today, Romero-Ruiz would
not have been entitled to derivative citizenship under the second pathway.
CHENEAU V. GARLAND 23
We thank the panel for calling the issue to the attention of
the Court, and we remand this case to the three-judge panel
for its analysis of the merits under the revised rule.7
REMANDED.
BRESS, Circuit Judge, with whom HUNSAKER,
BUMATAY, and VANDYKE, Circuit Judges, join,
dissenting:
Monssef Cheneau is potentially removable from the
United States, but only if he did not become a United States
citizen as a result of his mother naturalizing—known in
immigration law as “derivative citizenship.” An earlier
version of the derivative citizenship statute provided that a
child secures U.S. citizenship when, after his parent
7
We recognize that this case involves a statute that has been repealed
and will not affect many cases. As the Government observed, “litigation
regarding § 1432(a)(5) is not widespread, and will continue to diminish
with the passage of time.” We also recognize that, not only is litigation
concerning this issue “not widespread,” but that this case involves
relatively unique circumstances. It is striking how many events had to
align at particular times and in a particular order for Cheneau to qualify as
a derivative citizen under § 1432(a)(5): He lawfully entered the United
States at age thirteen, intending to remain permanently in the country. His
mother naturalized while he was under eighteen. He objectively and
officially manifested his intent to reside permanently in the United States
by filing an adjustment of status application before he turned eighteen.
And all of this occurred before the statute was repealed in 2000.
Nonetheless, it is important for resolution of this case, and the relatively
few cases involving similar circumstances, for us to apply the proper
statutory analysis and to apply a correction to the relevant portion of
Romero-Ruiz.
24 CHENEAU V. GARLAND
naturalizes, he “begins to reside permanently in the United
States while under the age of eighteen years.” 8 U.S.C.
§ 1432(a)(5) (1994) (repealed 2000). Does “reside
permanently” mean lawful permanent residence? Or does
“reside permanently” merely mean some degree of
“permanent” physical presence in the United States? Or
could it mean something else?
We had previously adopted the first interpretation,
holding that any different reading was not only incorrect but
in fact “unreasonable and contrary to the natural reading of
the language.” Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1062 (9th Cir. 2008). Nothing has changed since we decided
Romero-Ruiz, which our fine Chief Judge also authored. Yet
the Court’s en banc decision today now adopts the very
“unreasonable” reading of the statute that Romero-Ruiz
rejected.
I think our Court got it right the first time. The Court’s
new interpretation is an untenable construction of the
statutory text. Nor does it account for decades of statutory
history in which derivative citizenship necessarily required
lawful permission to reside permanently in the United
States—the legal backdrop against which the statutory
language “reside permanently” has long existed in our
immigration law. The majority’s reading also produces
significant problems of practical administration, creating
confusion as to who qualifies for derivative citizenship while
extending derivative citizenship without authorization to a
potentially wide range of additional people. That would
include people like the petitioner in this case, who committed
crimes in this country and who might otherwise be
removable.
CHENEAU V. GARLAND 25
It is tempting to think that because this case involves a
prior version of the derivative citizenship statute no longer on
the books, the implications from today’s ruling should be
limited. I hope that is the case, but I am concerned it won’t
be. The statute in question was in place from 1952 to 2000,
and the statutory language at issue goes back to 1907.
Millions of persons have become naturalized U.S. citizens
over those many decades. And if they had children born
abroad, those children (now adults) will potentially be
derivative U.S. citizens. I do not believe Congress licensed
the novel pathway to citizenship that the Court announces
today, much less the indeterminate inquiries that may now
need to be undertaken to determine who is a derivative U.S.
citizen, and thus who is entitled to the valuable rights and
privileges that citizenship confers.
These and other reasons cause me to conclude that
Cheneau did not become a derivative citizen and thus may be
removable. I therefore respectfully dissent.
I
Mr. Cheneau entered the United States in 1998 at age 13
on a non-immigrant student visa. He applied for adjustment
of status in 2000, at age 15, but did not become a lawful
permanent resident until 2003, after turning 18. His mother,
who had full legal custody of Cheneau, naturalized in 1999.
Starting in 2006, Cheneau was convicted of various crimes.
The United States seeks to remove him for that misconduct.
If Cheneau gained derivative citizenship, however, that is not
an option.
But is Cheneau a U.S. citizen? “[D]erivative citizenship
is determined under the law in effect at [the] time the critical
26 CHENEAU V. GARLAND
events giving rise to eligibility occurred.” Minasyan v.
Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). If the
“critical event” was Cheneau becoming a lawful permanent
resident in 2003 after he turned 18, then it is undisputed
Cheneau is not a U.S. citizen. See 8 U.S.C. § 1431(a)
(allowing derivative citizenship only for children under 18
who were lawful permanent residents as minors). That was
what the panel originally held, in reliance on Romero-Ruiz.
See Cheneau v. Barr, 971 F.3d 965, 969–70 (9th Cir. 2020)
(per curiam).
But if the “critical event” is instead Cheneau applying for
adjustment of status in 2000, we would have to consider a
different, now repealed section of the Immigration and
Nationality Act (INA). Under that provision, which was in
place after Cheneau’s mother naturalized and before Cheneau
turned 18, a child born outside this country may obtain
derivative citizenship based on a parent’s naturalization, if:
Such child [1] is residing in the United States
pursuant to a lawful admission for permanent
residence at the time of the naturalization of
the parent . . . or [2] thereafter begins to reside
permanently in the United States while under
the age of eighteen years.
8 U.S.C. § 1432(a)(5) (1994) (repealed 2000). Cheneau is not
eligible under the first clause: he had not attained lawful
permanent resident status “at the time” his mother naturalized
in 1999. But Cheneau argues, and the majority agrees, that
Cheneau satisfies the second clause.
In the majority’s view, it is sufficient for purposes of the
second clause that Cheneau “demonstrated an objective
CHENEAU V. GARLAND 27
official manifestation of permanent residence.” I respectfully
disagree. Even if that is a potentially sound rule that one
might enact—and I seriously question whether it is, for
reasons I explain below—the statute lacks this language. But
to even get to the majority’s new refinement, one must first
conclude, as the majority does, that “reside permanently”
does not mean permanent residence on a lawful basis. That
is the seed of the majority’s mistaken interpretation.
The majority opinion focuses heavily on the fact that
“Congress chose to use two different terms in the statute”:
“lawful admission for permanent residence” in the first
clause, but “reside permanently” in the second. From there
the majority presumes that the terms have different meanings,
because “[w]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432
(1987) (quotations omitted). The majority thus holds that
under § 1432(a)(5)’s second clause, Cheneau was eligible for
derivative citizenship even though he did not become a lawful
permanent resident before turning 18.
The presumption that different statutory phrases have
different meanings is, of course, a valid one, although that
presumption would seem to have somewhat less force when,
as here, the difference between the two phrases is not
particularly dramatic. Even so, the presumption that the
majority employs, “like other canons of construction, is no
more than a rule of thumb that can tip the scales when a
statute could be read in multiple ways.” Sebelius v. Auburn
Reg’l Med. Ctr., 568 U.S. 145, 156 (2013) (quotations and
alterations omitted).
28 CHENEAU V. GARLAND
Here, we must weigh any presumption that different
phrases have different meanings alongside other relevant
tenets of statutory interpretation. One is that “[w]hen
administrative and judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the
same language in a new statute indicates, as a general matter,
the intent to incorporate its administrative and judicial
interpretations as well.” Bragdon v. Abbott, 524 U.S. 624,
645 (1998). Another is that “[s]tatutory language cannot be
construed in a vacuum” because “the words of a statute must
be read in their context and with a view to their place in the
overall statutory scheme.” Sturgeon v. Frost, 136 S. Ct.
1061, 1070 (2016) (quotations omitted). That canon is itself
key to another “cardinal principle,” which is that “a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (quotations omitted).
Applying these principles shows that the majority’s
interpretation is unsound. I will begin with the statutory
history, turn next to the statutory language at issue, and then
return to the history.
A
The derivative citizenship statute we consider in this case
is a historical artifact that contains a particular
phrase—“reside permanently”—with a recognized legal
heritage. That phrase did not come out of the ether: it was
used in the derivative citizenship statute for nearly 100 years.
There is significant evidence that the statutory phrase
required then, and requires now, that a child have lawful
permission to reside here permanently to secure derivative
CHENEAU V. GARLAND 29
citizenship. The majority’s interpretation of the phrase
“reside permanently” is ahistorical, neglecting to account for
the fact that the phrase was traditionally understood in this
context to require lawful permanent residence.
1
The relevant history begins in the early part of the
twentieth century. Although § 1432(a)(5) was adopted in
1952, the phrase “reside permanently” has been part of the
derivative citizenship statute since 1907. Act of Mar. 2,
1907, ch. 2534, § 5, 34 Stat. 1228, 1229. The 1907 Act
provided that “[t]he citizenship of such minor child shall
begin at the time such minor child begins to reside
permanently in the United States.” Id. (emphasis added).
Relevant to our interpretation of this same phrase in later
iterations of the statute, there is considerable evidence that
“reside permanently” was understood to require lawful
permanent residence: “[o]ne of the conditions [of the 1907
Act] is that such minor child shall have a lawful permanent
residence in this country.” United States ex rel. Garos v.
Reimer, 24 F. Supp. 869, 870 (S.D.N.Y. 1938), aff’d, 97 F.2d
1019 (2d Cir. 1938); see also id. (“[T]he difficulty is that the
relator never lawfully acquired a permanent residence in the
United States which was an essential requisite under section
5 [of the 1907 Act]. He was never lawfully admitted for
permanent residence.”).
As one treatise thus explains:
All statutes regarding derivative naturalization
. . . have been interpreted to require a lawful
admission before the child would be
30 CHENEAU V. GARLAND
considered to have been ‘dwelling’ or
‘residing lawfully’ in the United States. . . .
[T]he requirement of lawful admission to
permanent residence has been adopted, at
least for the purposes of the post-1907
statutes. . . . A person does not derive
citizenship even when at the time of his or her
original entry, he or she was eligible for
lawful permanent resident status and failed to
obtain it through no fault of his or her own.
U.S. Citizenship and Naturalization Handbook § 5:8 (2020)
(citing cases); see also Matter of C—, 8 I. & N. Dec. 421, 422
(BIA 1959) (explaining that “[l]awful permanent residence
has always been a prerequisite to derivative citizenship”
(quoting S. Rep. No. 81-1515, at 707 (1950))). Another
treatise similarly explains that to gain derivative citizenship,
“[l]egal entry must be strictly complied with. Mere physical
presence or temporary entrance by permission is not legal
entry nor legal residence for the purpose of acquiring
citizenship.” Sidney Kansas, U.S. Immigration: Exclusion
and Deportation and Citizenship of the United States of
America 345 (1940); see also Sidney Kansas, Citizenship of
the United States of America 81–82 (1936) (same).
In 1940, Congress repealed and replaced the derivative
citizenship provisions. Nationality Act of 1940, ch. 876,
§ 504, 54 Stat. 1137, 1172–74. Like § 1432(a)(5), the 1940
Act broke things down based on the timing of the child’s
residence in the United States as compared to the timing of
the parent’s naturalization. Thus, under the 1940 Act, a child
would gain derivative citizenship if he: “[1] resid[ed] in the
United States at the time of the naturalization of the parent
last naturalized . . . or [2] thereafter begins to reside
CHENEAU V. GARLAND 31
permanently in the United States while under the age of
eighteen years.” Nationality Act of 1940, ch. 876, § 314, 54
Stat. 1137, 1145–46. The second clause, one will observe,
carries forward the “reside permanently” language from the
1907 Act and is identical to the clause we are required to
interpret in this case. See 8 U.S.C. § 1432 (a)(5) (1994)
(repealed 2000).
There is substantial evidence that this section of the 1940
Act, irrespective of the two clauses, was also generally
understood to require permanent residence on a lawful basis.
See Matter of C—, 8 I. & N. Dec. at 422 (finding that a child
who lived in the United States did not gain derivative
citizenship under the 1940 Act because “[l]awful permanent
residence has always been a prerequisite to derivative
citizenship . . . [so] [e]ven though an alien may reside
physically within the United States, if he be in an excluded
class, such residence cannot be considered as a permanent
residence” (citations omitted)); U.S. Citizenship and
Naturalization Handbook § 5:15 (2020) (under the 1940 Act,
a “child would not derive citizenship unless both the
naturalization of the parent or parents and the child’s lawful
permanent residence occurred before the child turned
eighteen years of age”).
Indeed, there is good reason to believe that the second
provision in the 1940 Act in particular required lawful
permanent residence as a condition for children who sought
derivative citizenship after a parent had naturalized. Besides
using the same “reside permanently” language that had long
been understood to require lawful permanent residence, the
explanation also lies in how the 1940 Act distinguished
between immigrants and nonimmigrants.
32 CHENEAU V. GARLAND
While the Nationality Act of 1940 was in place, Congress
classified aliens as immigrants or nonimmigrants. See S.
Rep. No. 81-1515, at 414, 612 (1950).1 Immigrants were
those “coming to this country for permanent residence.” Id.
at 612; see also id. at 414, 618; Immigration Act of 1924, ch.
190, § 3, 43 Stat. 153, 154–55. Nonimmigrants, in contrast,
could only reside here temporarily and could not gain
citizenship. S. Rep. No. 81-1515, at 414, 612 (1950); United
States v. Kwan Shun Yue, 194 F.2d 225, 228 (9th Cir. 1952)
(“Only those entering as immigrants establish formal
residence and gain eligibility to citizenship.”). Conversely,
a person who was an immigrant, and who thus “ha[d] a record
of admission for permanent residence,” could be eligible for
citizenship. S. Rep. No. 81-1515, at 732 (1950); see also
8 C.F.R. §§ 363.1, 363.3–.4 (1949).
This meant that a child seeking derivative citizenship
“was required to be in possession of a valid immigration visa
to be lawfully admitted for permanent residence.” Matter of
C—, 8 I. & N. Dec. at 422. A child who was not “lawfully
admitted into the United States for permanent residence[] . . .
[l]ack[ed] this essential element” and thus could “not derive
citizenship.” Id. at 423; see also S. Rep. No. 81-1515, at 709
(1950) (noting that a child could gain citizenship after the
death of a parent if all the 1940 Act’s “conditions are
fulfilled,” which included “lawfully residing permanently in
the United States”); Marian Schibsby & Read Lewis, How to
1
Here I use a Senate Report not as an authoritative indicator of
legislative intent but because this Senate Report provides a useful
description of the statutory history for derivative citizenship, much like a
learned secondary source. See S. Rep. No. 81-1515, at 1 (1950)
(describing how the Senate commissioned the report as “a full and
complete investigation of [the] entire immigration system”).
CHENEAU V. GARLAND 33
Become a Citizen of the United States 51–52 (1959) (under
the 1940 Act, a “child did not derive American citizenship
through the naturalization of its parents unless both parents
were American citizens before the child reached the age of 18
and the child was legally admitted to the United States for
permanent residence before [he] was 18”).
The majority errs in relying on cases from before 1952 in
suggesting that derivative citizenship turned on whether a
child’s initial entry into the United States was lawful. These
cases merely show that legal entry was necessary for
derivative citizenship. But they also have language and
reasoning supporting my view that legal entry was not
sufficient to derive citizenship because what was required was
lawful permission to remain here permanently. See, e.g.,
Reimer, 24 F. Supp. at 870 (the child did not derive
citizenship because “[h]e was never lawfully admitted for
permanent residence,” “which was an essential requisite”);
Matter of M—, 3 I. & N. Dec. 815, 816 (BIA 1949)
(“[L]awful admission for permanent residence[] . . . is
required in order for [the] subject to establish that she derived
citizenship.”); Matter of C—, 8 I. & N. Dec. at 423 (the child
did not derive citizenship because he did not meet
requirements to “presume[] a lawful admission for permanent
residence”). That is what all the treatises and other secondary
sources I have cited say as well, confirming a commonly
shared understanding at the time. The majority, meanwhile,
identifies no case, treatise, or any other source endorsing its
theory that, before 1952, a child could be present here on a
temporary basis (such as a student visa) and from there make
the immediate leap to derivative United States citizenship
through a naturalized parent.
34 CHENEAU V. GARLAND
2
The 1952 Act bears out my view of the history. When
Congress enacted the INA in 1952, it repealed the Nationality
Act of 1940. Immigration and Nationality Act, ch. 477,
§ 403(a)(42), 66 Stat. 163, 279 (1952). Before the INA, a
nonimmigrant temporarily residing in the United States
generally could not adjust his status to residing permanently
within the United States; he “had to leave the country and
apply for an immigrant visa at a consulate abroad.” Elkins v.
Moreno, 435 U.S. 647, 667 (1978); see also Landin-Molina
v. Holder, 580 F.3d 913, 915–16 (9th Cir. 2009) (describing
this statutory history); S. Rep. No. 81-1515, at 591 (1950)
(nonimmigrants “may not change from a temporary status to
the status of an immigrant for permanent residence” inside
the country).
To address this issue, Congress in 1952 introduced the
formal term “lawful permanent residence” as part of a
broader overhaul of the immigration laws that allowed
persons to adjust to legal permanent residency from within
the United States, rather than outside it. See Elkins, 435 U.S.
at 667; Landin-Molina, 580 F.3d at 916. To account for this
change, Congress amended the first clause of the derivative
citizenship provision to require that the child be “residing in
the United States pursuant to a lawful admission for
permanent residence at the time of the naturalization of the
parent.” 8 U.S.C. § 1432(a)(5) (1952) (repealed 2000).
The majority seizes on this new statutory language to
suggest that the long-used phrase “reside permanently” must
mean something different under the 1952 Act than “lawful
admission for permanent residence.” But the history tells us
otherwise. There is, as I have discussed, considerable
CHENEAU V. GARLAND 35
evidence that the 1940 Act (and its predecessor) had
generally been understood to contain a lawful permanent
residence prerequisite. So when Congress in 1952 adopted
the term “lawful admission for permanent residence,” that as
a general matter reflected a “codification of court decisions
denying naturalization to those who entered illegally or on
temporary visas.” Developments in the Law—Immigration
and Nationality, 66 Harv. L. Rev. 643, 713 (1953).
Contrary to what the majority suggests, Congress did not
need to make similar changes to § 1432(a)(5)’s second clause,
which applied to children who began to “reside permanently”
in the United States after their parents had naturalized. As I
explain below in detail, as a textual matter, it was clearly
sufficient for Congress to insert the phrase “lawful admission
for permanent residence” only into the first clause of
§ 1432(a)(5) because under basic principles of statutory
construction, the statute is most naturally read as extending
that requirement to the second clause as well. Otherwise, the
first clause is entirely, or almost entirely, superfluous. Even
so, it was unnecessary for Congress to add an explicit
reference to “lawful admission for permanent residence” to
the second clause if the second clause already embodied that
concept, as the history suggests.2
2
The First Circuit has suggested that the 1940 Act’s first provision
“apparently” did not require lawful permanent residence. Thomas v.
Lynch, 828 F.3d 11, 16 & n.6 (1st Cir. 2016). The First Circuit did not
explain the basis for that theory. But even if true, it at most suggests that
Congress in 1952 increased the lawful permanent residency requirement
for the first provision to align it with the second provision. The position
that the majority adopts today means that under § 1432(a)(5), Congress in
1952 imposed more onerous requirements on children seeking to become
derivative citizens at the time of their parents’ naturalization than
afterward. But as the First Circuit explained, “it is not at all clear why
36 CHENEAU V. GARLAND
Unsurprisingly, the 1952 Act was thus itself understood,
consistent with its predecessors, to require lawful admission
for permanent residence as a general requirement for
derivative citizenship. See, e.g., Schibsby, supra, at 52
(under the 1952 Act, “[t]he child must be residing in the
United States—after being legally admitted for permanent
residence—prior to his 16th birthday”); Frank L. Auerbach,
The Immigration and Nationality Act: A Summary of Its
Principal Provisions 70 (1953) (§ 1432(a)(5) requires that
“the child is lawfully admitted to the United States for
permanent residence at the time of the naturalization of the
parent last naturalized or is lawfully admitted for permanent
residence after the parent’s or parents’ naturalization while
under sixteen years of age”); Sidney Kansas, Immigration and
Nationality Act Annotated with Rules and Regulations 203
(1953) (under the 1952 Act, a child gains derivative
citizenship “if he was lawfully admitted to the United States
for permanent residence”). The majority opinion’s re-
interpretation of the 1952 Act is contrary to this long-held
understanding.
The majority therefore errs in claiming that a Senate
Report supports its interpretation of the 1952 Act. I do not
believe it appropriate to use legislative history to ascertain
legislative intent, but the majority’s analysis should be
unpersuasive even to those who do. Referencing the lawful
permanent residence requirement in § 1432(a)(5)’s first
clause, the majority concedes that the Senate Report
recommended only “minor changes in the law relating to
derivative citizenship.” S. Rep. No. 81-1515, at 712 (1950).
Congress [in 1952] would have intended that result” if the 1940 Act
instead made it harder to obtain derivative citizenship after a parent had
naturalized. Id. at 16.
CHENEAU V. GARLAND 37
Yet the majority still infers from this that the prior statutes
contained no lawful permanent residence requirement.
That inference is not warranted. The same Senate Report
that the majority quotes also states that “[t]he subcommittee
makes no recommendations for substantial changes in the
law relating to derivative citizenship . . . .” Id. (emphasis
added). And at other points, the Senate Report notes that
“[l]awful permanent residence has always been a prerequisite
to derivative citizenship,” and that the 1952 Act would
“[r]equire that all persons taking citizenship derivatively be
residing in the United States pursuant to a lawful admission
for permanent residence.” Id. at 707, 713. The Senate Report
therefore supports my view that irrespective of § 1432(a)(5)’s
differing language across the two clauses, the 1952 Act was
merely a continuation of prior law, which required lawful
permanent residence to be eligible for derivative citizenship.
The majority, echoing the panel concurrence of our fine
colleague Judge Bennett, thus errs in believing it is “difficult
to imagine why Congress [in 1952] would write two
provisions that use different words but mean the same thing,
when it could have written one provision along the lines of
‘pursuant to a lawful admission for permanent residence at
the time of naturalization or thereafter.’” Cheneau, 971 F.3d
at 974 (Bennett, J., concurring). Just as a painter need not
start every new work from a clean canvas, Congress may add
to what it has already created. In my view, that is the more
probable explanation of what Congress did here. And it is
understandable why it might have done so: such an approach
can promote stability in the law when, as here, the statutory
phrase had existed for decades.
38 CHENEAU V. GARLAND
I therefore do not think that treating § 1432(a)(5)’s second
clause as requiring lawful permanent residence would reflect
“a radical change” in the law. Id. at 976 (Bennett, J.,
concurring). From the perspective of the question at issue,
the better view is that the 1952 Act worked no material
change in the law, radical or otherwise. As we previously
recognized, the 1952 Act in fact “affirmatively disclaimed
any intention to change the existing law with respect to
derivative citizenship.” Acevedo v. Lynch, 798 F.3d 1167,
1171 (9th Cir. 2015) (quotations omitted). It is actually the
majority opinion that creates a substantial change in the law,
treating people as derivative citizens irrespective of whether
they are permanently residing in the United States on a lawful
basis and despite the crimes they have committed here.
B
The statutory history also helps us to understand why the
majority’s construction of the text is mistaken. A proper
interpretation of the text leads to the same conclusion as the
statutory history suggests: lawful permanent residence is a
prerequisite for derivative citizenship under § 1432(a)(5).
Again, under the provision as it existed at the relevant
time for Mr. Cheneau, a child born outside this country could
obtain derivative citizenship based on a parent’s
naturalization, if:
Such child [1] is residing in the United States
pursuant to a lawful admission for permanent
residence at the time of the naturalization of
the parent . . . or [2] thereafter begins to reside
CHENEAU V. GARLAND 39
permanently in the United States while under
the age of eighteen years.
8 U.S.C. § 1432(a)(5) (1994) (repealed 2000).
Given the history I have set forth above, it makes sense to
read “reside permanently” as meaning “reside permanently
with lawful permission to do so.” “[C]ourts presume that
Congress will use clear language if it intends to alter an
established understanding about what a law means; if
Congress fails to do so, courts presume that the new statute
has the same effect as the older version.” Firstar Bank, N.A.
v. Faul, 253 F.3d 982, 988 (7th Cir. 2001); see also Bragdon,
524 U.S. at 645; Cottage Sav. Ass’n v. Comm’r, 499 U.S. 554,
562 (1991). Nothing in the language Congress put into law
in 1952 suggested any intention to depart from preexisting
law on whether derivative citizenship required the child to be
permanently present in the United States on a lawful basis.
But one need not agree with me on the history to see that
the majority’s interpretation is mistaken. Focusing only on
the language of § 1432(a)(5) abstracted from its historical
moorings, the reason the majority’s interpretation is wrong as
a textual matter is that if “reside permanently” in
§ 1432(a)(5)’s second clause does not mean lawful permanent
residence, then § 1432(a)(5)’s first clause is effectively a
nullity. This is precisely why our prior decision in Romero-
Ruiz rejected the majority’s current interpretation as
“unreasonable and contrary to the natural reading of the
language.” 538 F.3d at 1062. As Romero-Ruiz explained,
“[t]o interpret the second clause as conferring derivative
citizenship on children who otherwise meet the requirements
as long as they are permanently living in the United States
would render the first clause—requiring legal permanent
40 CHENEAU V. GARLAND
residence—superfluous.” Id. That reasoning was right on the
mark.
Section 1432(a)(5)’s first clause confers derivative
citizenship if the child “is residing in the United States
pursuant to a lawful admission for permanent residence at the
time of the naturalization of the parent.” As the Board of
Immigration Appeals has explained, under the majority’s
interpretation, “[a]n alien would rarely if ever need to be
‘residing in the United States pursuant to a lawful admission
for permanent residence’ because he or she could simply
show that some lesser form of residence was ‘thereafter’
acquired before the alien reached the age of 18.” Matter of
Nwozuzu, 24 I. & N. Dec. 609, 614 (BIA 2008). A child who
did not have lawful permanent residence “at the time” his
parent naturalized and who was thus ineligible for derivative
citizenship under § 1432(a)(5)’s first clause could wake up
the morning after his parent naturalizes and be a derivative
citizen under the second clause.
It is hard to imagine why Congress would have made it
harder for a child to gain citizenship at the time his parents
naturalized than it would afterward. See Thomas, 828 F.3d at
16. And it is equally hard to imagine that Congress intended
such easy evasion of the lawful permanent resident
requirement in § 1432(a)(5)’s first clause. That significant
surplusage problem thus makes the majority’s interpretation
“contrary to the natural reading of the language.” Romero-
Ruiz, 538 F.3d at 1062. It also counsels heavily in favor of
reading “resides permanently” to mean lawful permanent
residence, a meaning it can easily bear (and that finds support
in the statutory history).
CHENEAU V. GARLAND 41
The majority cannot overcome the “unreasonable”
surplusage that its interpretation generates. Romero-Ruiz,
538 F.3d at 1062. The majority claims there is no superfluity
problem because under its interpretation, “each pathway
applies distinct requirements to distinct categories of children
with distinct timing.” But that merely restates the rule the
majority is trying to prove. That each of the majority’s
“pathways” contains “distinct requirements” does not
demonstrate that the second pathway would not make the first
one irrelevant.
The majority’s only attempt to demonstrate otherwise is
buried in a lengthy footnote. Contrary to what we said in
Romero-Ruiz, the majority now concludes that its reading
does “not necessarily” create a surplusage problem because
“[s]omeone with lawful permanent residence may not
permanently reside in the United States within the meaning
of the INA.” The majority gives as its example “green card
commuters” who “can be lawfully admitted for permanent
residence despite physically residing in Canada or Mexico
and crossing the border to work.” But this example only
confirms the depth of the surplusage problem that the
majority opinion creates.
It is true that those with lawful permanent resident status,
such as green card commuters, may live outside this country
and not necessarily reside in the United States. But
§ 1432(a)(5) is a statute about citizenship. And
§ 1432(a)(5)’s first clause provides derivative citizenship to
children “residing in the United States pursuant to a lawful
admission for permanent residence.” The majority does not
explain how a child permanently residing outside the United
States would even qualify for derivative citizenship.
Congress enacted § 1432 “to ensure that only those alien
42 CHENEAU V. GARLAND
children whose ‘real interests’ were located in America with
their custodial parent, and not abroad, should be
automatically naturalized.” Nehme v. INS, 252 F.3d 415, 425
(5th Cir. 2001). It is hard to see how that interest is served
(or the statute satisfied) by granting derivative citizenship to
a child who does not even permanently reside in the United
States with his naturalized parent. See also Cheneau,
971 F.3d at 973 (Bennett, J., concurring) (explaining that
§ 1432(a)(5)’s first clause “imposes an actual residence
requirement”).
Of course, even if the majority’s hypothetical scenario
were possible under the statute, it is exceedingly unlikely to
occur. In the one example the majority gives, § 1432(a)(5)’s
first clause but not the second would apply only to the
negligible class of people (1) who are under 18 years old,
(2) who do not live in the United States, (3) who happen to
regularly commute to the United States for work, see 8 C.F.R.
§ 211.5, and (4) whose parent or parents became naturalized
citizens. This class is made even smaller considering that
children below a certain age will not be regular workers.
The upshot is that even if the majority has shown there is
some potential scenario in which its reading of § 1432(a)(5)’s
second clause does not make the first clause entirely
superfluous, that scenario is surely rare. The linguistic and
logical intuitions behind the canon against surplusage are not
overcome simply because one can identify some highly
unusual situation in which a statutory provision would
technically remain operative. See TRW, 534 U.S. at 29(statutes should not be read to render a provision “entirely
superfluous in all but the most unusual circumstances”).
Whether the majority’s reading of § 1432(a)(5)’s second
clause results in a total or near total elimination of its first
CHENEAU V. GARLAND 43
clause, the majority’s interpretation of “reside permanently”
is unsound.3
The majority’s other arguments are equally unpersuasive.
The majority maintains that “the terms ‘lawful admission for
permanent residence’ and ‘reside permanently’ have different
meanings in the INA.” But that again assumes the conclusion
to the question we are trying to answer here.
As the majority acknowledges, although the phrase
“lawful admission for permanent residence” is defined in the
statute, the phrase “reside permanently” is not. The statute
does separately define “permanent” and “residence,” see
8 U.S.C. §§ 1101(a)(31), (33), as the majority points out. But
we are not considering those terms individually (and the term
“residence” is not even in the operative provision). We are
instead evaluating a phrase—“reside permanently”—in both
its textual and historical contexts. The question is thus
whether, in the context in which it is used in § 1432(a)(5),
“reside permanently” should be construed to mean lawful
permanent residence. In this context, and to avoid making
§ 1432(a)(5)’s first clause nearly or completely unnecessary,
it is better to read “reside permanently” as I do and as the
history of this provision further supports.
3
The majority also claims that “an individual may reside permanently
in the United States without lawful permanent resident status.” To support
this point, the majority categorizes G-4 visa holders and seamen as
residing permanently in the United States, even though they do not have
lawful permanent resident status. The majority misstates these statutes.
Both require employment for the person to continue to reside here, which
an employer may end. See 8 U.S.C. § 1101(a)(15)(D), (a)(15)(G)(iv).
These persons may not reside permanently in the United States
irrespective of their employment. See 8 U.S.C. § 1101(a)(31). They are
thus not permanent residents in any relevant sense.
44 CHENEAU V. GARLAND
The majority therefore errs in claiming that my
interpretation “involves reading other language into the
statute” because “[t]he word ‘lawful’ is conspicuously absent
from the second pathway.” That is a mischaracterization.
My interpretation consists of giving meaning to a particular
phrase—“reside permanently”—when that phrase is used in
a particular textual setting and with a particular historical
backdrop. Notably, the majority reads in a “lawfulness”
requirement too, seemingly requiring that Cheneau’s initial
entry into the United States be “lawful.” The difference,
however, is that the majority’s more limited “lawfulness”
requirement has no basis in the structure or history of the
statute. And the majority of course adds on top of that an
“objective official manifestation” component that has no
basis in the statute at all.
The majority similarly gets no mileage in pointing out
that “[t]he term ‘reside permanently’ appears elsewhere in the
INA, but not as a synonym for ‘lawful admission for
permanent residence.’” The examples the majority cites from
other code provisions all have one thing in common: the
phrase “reside permanently” is used in a provision that on its
own already required lawful permanent residence. In those
different contexts, “reside permanently” must therefore be
performing a different function than it does in § 1432(a)(5)’s
second clause.
Take for instance 8 U.S.C. § 1438. It provides that
former U.S. citizens who lost their citizenship after fighting
for allied countries during World War II could regain their
citizenship if they had “been lawfully admitted to the United
States for permanent residence and intend[] to reside
permanently in the United States.” 8 U.S.C. § 1438(b)(2)
(emphasis added). In this context “reside permanently”
CHENEAU V. GARLAND 45
creates an additional, domicile-type requirement beyond
lawful permanent resident status. The same is true of the
other provisions the majority cites. See id. § 1431(a)(2)
(1994); id. § 1433(a)(5)(A) (1994).
What this at most proves is that like most statutory
phrases (especially undefined ones), the phrase “reside
permanently” can have different meanings depending on the
context in which it is used. If it is in a statutory provision as
an additional requirement to lawful permanent resident
status, as in the majority’s examples, we should not interpret
it to mean lawful permanent resident status, or else we would
be making parts of the provision surplusage. But in this case,
§ 1432(a)(5)’s two clauses are separated by an “or,” not an
“and,” and reading “reside permanently” as a domicile-type
requirement only, as the majority does, makes the first
provision entirely or almost entirely unnecessary. That was
our core holding in Romero-Ruiz, with which the Eleventh
Circuit has since agreed. See United States v. Forey-
Quintero, 626 F.3d 1323, 1326–27 (11th Cir. 2010).
Section 1432(a)(5)’s two clauses thus work together but
apply to two different circumstances. The first clause applies
to children who are lawful permanent residents “at the time”
their parent naturalizes; the second clause applies to children
who become lawful permanent residents after their parent
naturalizes. As we explained in Romero-Ruiz, “[a] plain
reading of the statute evidences the requirement that the child
be residing pursuant to lawful admission either at the time of
the parent’s naturalization or at some subsequent time while
under the age of 18. The phrase ‘or thereafter begins to
reside permanently’ alters only the timing of the residence
requirement, not the requirement of legal residence.”
538 F.3d at 1062.
46 CHENEAU V. GARLAND
Is this the only way the statute could have been drafted to
accomplish this result? No—there are of course other ways
it could have been written. Perhaps it could have been
written more clearly, although Congress might have thought
it inadvisable (or unnecessary) to drop “reside permanently”
from a statute that had used this language without apparent
incident for decades. Even so, that Congress might have
made our lives easier does not change the more natural
meaning of the text it enacted.
That brings me back to the final piece of statutory history.
In the Child Citizenship Act of 2000, Congress consolidated
the derivative citizenship provisions into a single provision
found at 8 U.S.C § 1431(a). Child Citizenship Act of 2000,
Pub. L. No. 106-395, § 101, 103, 114 Stat. 1631, 1631–33.
The new language provides that a child born outside the
United States gains derivative citizenship “when all of the
following conditions have been fulfilled:” (1) the parent is a
citizen, “whether by birth or naturalization,” (2) the child is
under 18, and (3) “[t]he child is residing in the United States
in the legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.”
8 U.S.C. § 1431(a).
Once again, the statute requires the child to have lawful
permanent resident status before he turns 18. That is why, if
the “critical event” for Cheneau’s derivative citizenship is his
becoming a lawful permanent resident, Minasyan, 401 F.3d
at 1075, it is clear Cheneau is not a derivative U.S. citizen
because he did not achieve this status until after his 18th
birthday.
The majority agrees but concludes that Congress’s 2000
revision “indicates that the previous version of the statute was
CHENEAU V. GARLAND 47
broader.” There is no apparent basis for that assumption,
which even the majority concedes does not, “[s]tanding
alone,” “compel” its interpretation. I think the better view is
instead that the statute has long required a child to have
permanent residency on a lawful basis, and so Congress’s
revisions in 2000 were merely a carry-over of previous law.
But on the majority’s view, the 2000 amendment was
instead a seismic shift in immigration law, upending a
supposed understanding, persisting since at least 1952 (and
maybe longer), that lawful permanent residency was not
always a requirement for derivative citizenship. If that were
the case, one would imagine significant evidence—in the
legislative history, case law, commentary, or
otherwise—discussing such a foundational change in how
children may become citizens. But the majority cites no such
evidence and neither does Cheneau.
In fact, as to other aspects of child citizenship not at issue
here, it is recognized that the purpose of the 2000 Act was “to
liberalize then-existing law to make it easier for foreign-born
children of United States citizens to obtain citizenship.” Pina
v. Mukasey, 542 F.3d 5, 8 (1st Cir. 2008) (emphasis added).
It would therefore be strange if the 2000 Act simultaneously
made it harder for children to become derivative citizens, as
the majority opinion necessarily implies.
The better read of the 2000 amendments is that, like the
1940 and 1952 amendments, they were just another way to
say the same thing: a child seeking derivative citizenship
must show that he has lawful permission to reside
permanently in the United States.
48 CHENEAU V. GARLAND
II
There remains one final set of problems for the majority.
If “reside permanently” does not mean residing permanently
in the United States under lawful status to do so, what does
“reside permanently” mean? The majority tells us it means
“that an applicant demonstrate an official manifestation of
permanent residence.” (Emphasis added). The majority then
concludes that Cheneau meets this requirement because he
“filed an application for adjustment of status to lawful
permanent resident status after his mother naturalized” and
before he turned 18, thus “expressing his intent to resident
permanently in the United States.” Unfortunately, many
issues flow from the majority’s decision to interpret the
statute at odds with its text and historical roots.
The first, most obvious, is that if “reside permanently”
does not mean “lawful permanent residence,” then by its plain
text it should just mean “reside permanently,” full stop. But
if that were the case, a minor could enter the United States
unlawfully, remain here illegally, commit numerous
deportable offenses, and yet achieve (and maintain) automatic
citizenship. Or the minor could enter lawfully, stay
unlawfully, and become a citizen that way. There is no basis
to conclude Congress meant to confer citizenship on such
persons, much less condone the unlawful conduct that would
lead to it.
To avoid these untoward results, the majority is forced to
place a new gloss on the statute, requiring a person
“officially” to declare himself as “inten[ding] to reside
permanently in the United States.” It is not apparent that
someone would need to be present in the United States legally
to meet the majority’s test. But even so, the statutory text
CHENEAU V. GARLAND 49
says nothing about “official manifestations” of permanent
residency. The majority’s self-created requirement exceeds
an (incorrect) “strict construction” reading of “reside
permanently”—measured by length of physical presence
only. At the same time, it falls short of the restriction
Congress actually imposed—a lawful permanent residency
requirement.
The majority’s only support for its middle-ground
“official manifestation” approach is the Second Circuit’s
decision in Nwozuzu v. Holder, 726 F.3d 323, 333 (2d Cir.
2013), which adopted the same rule. But Nwozuzu purported
to locate this rule in its prior decision in Ashton v. Gonzales,
431 F.3d 95, 98 (2d Cir. 2005). See Nwozuzu, 726 F3d. at
333. And Ashton cited no authority for its qualification,
instead merely stating that the court “believe[d] that there
must be some objective official manifestation of the child’s
permanent residence.” Ashton, 431 F.3d at 98 (emphasis
added). Such an atextual “belief” should not command our
allegiance here.
But that is not the end of the difficulties. Presumably
because the statutory language says “thereafter begins to
reside permanently,” the majority suggests it matters here that
Cheneau made his “official manifestation” “after his mother
naturalized.” That would seemingly address my hypothetical
of the child who is not a lawful permanent resident and who
is therefore ineligible for derivative citizenship under
§ 1432(a)(5)’s first clause, but who wakes up the morning
after his parent naturalizes and finds himself a United States
citizen under the second clause. But even then, the child
could later that day “officially” manifest his intent to reside
permanently, which would apparently suffice under the
majority opinion.
50 CHENEAU V. GARLAND
It is hard to see what sense there is in any of this. If
Cheneau had applied for adjustment of status before his
mother naturalized and not done anything after that time to
further manifest his intent permanently to remain here, it
appears that under the majority opinion he would not be a
derivative U.S. citizen. But if he had consistently manifested
that “official” intent before her naturalization, including for
years, what difference should it make if he did nothing more
afterwards? The majority’s approach rewards people who
“officially manifested” a permanent intent to remain in the
United States toward the end of their minority, while placing
at a comparative disadvantage those children who arrived
here at a young age, resided here for many years, but failed to
take any further “official” action after their parents
naturalized and before they turned 18.
The arbitrariness that the majority’s approach invites can
be seen in Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016).
There, the First Circuit declined to decide whether my view
or the majority’s view was correct, holding that even under
the majority’s view, the petitioner there could not prevail
because he had taken “no official action with respect to his
citizenship status in the three-day window between his
mother’s naturalization and his eighteenth birthday.” Id. at
17 (emphasis added). That was so even though the petitioner,
Thomas, had lived in the United States since he was five
years old and even though his mother, before her
naturalization, had made repeated immigration filings on
Thomas’s behalf, including seeking to have Thomas
classified as a lawful permanent resident. Id. at 12–13.
Cheneau, in comparison, did not arrive in the United States
until he was 13 and his mother apparently allowed three years
to pass before pressing the INS on the status of his
CHENEAU V. GARLAND 51
application for adjustment of status. Is Cheneau really more
deserving of derivative citizenship than Thomas?
Congress could of course have decreed that a petitioner
like Thomas should have done something “official” in the
mere 72 hours between the happy occasion of his mother’s
naturalization and his turning 18. If that result were
considered unjust, Congress could have changed the law. Or
if Congress refused, we could at least have the satisfaction of
knowing that such a rule, potentially harsh in some of its
applications, was the product of a democratic process. The
difficulty is that when courts depart from the statutory text
and bear responsibility for a new legal regime, they must also
face the valid criticism that the regime they have put into law
may produce its own inequities.
Finally, we are left with the question of what counts as an
“official manifestation of permanent residence.” To my
knowledge, that is not a concept with any understood
meaning in immigration law. Before today, it was understood
that “[a] child’s acquisition of citizenship on a derivative
basis occurs by operation of law and not by adjudication.”
Matter of Fuentes, 21 I. & N. Dec. 893, 896 (BIA 1997).
That makes sense when the triggers for derivative citizenship
are two legal events: a parent’s naturalization and a child
securing permission permanently to remain in the United
States lawfully. But an “official manifestation” test almost
by definition will require adjudications as courts sort through
the limits of that concept.
Here the majority holds it is sufficient that Cheneau filed
for adjustment of status to lawful permanent resident after his
mother naturalized. But left unsaid is whether any
manifestation short of that would also suffice. What about
52 CHENEAU V. GARLAND
the many other actions a non-citizen could take that might
reasonably reflect an intent to remain in the United States
permanently? Knowing which actions are “official” enough
or indicative enough of an intent to reside here permanently
is hard to say after reading the majority’s opinion.
The uncertainty that the majority opinion produces
clashes with Congress’s objective that derivative
citizenship—a status conferred automatically when the
required conditions are met—should be relatively easy to
determine. In the derivative citizenship context, “[t]he
Congressional goal was to create a bright-line test so that
those who fell without the derivative citizenship provision
could recognize that fact.” Peignand v. INS, 440 F.2d 757,
759 (1st Cir. 1971); see also Cheneau, 971 F.3d at 968 (“The
INA confers automatic derivative citizenship on the children
of a naturalized citizen, provided certain statutorily
prescribed conditions are met.” (quotations omitted and
emphasis added)). Being able to assess with relative ease
whether someone is a derivative citizen has obvious benefits
for both the government and for those persons who may be
derivative citizens, as well as their families. An “official
manifestation” test injects considerable ambiguity into that
process, while expanding the population of derivative citizens
beyond what Congress authorized.
The implications of today’s decision are thus potentially
significant. While the statute we construe here is no longer
operative, it was in place for a very long time and in the not-
too-distant past. Government statistics indicate that close to
11.5 million people naturalized between 1952 and 2000,
which is the timeframe that former § 1432(a)(5) was in effect.
See Naturalizations, Department of Homeland Security,
https://www.dhs.gov/immigration-statistics/naturalizations
CHENEAU V. GARLAND 53
(select “Naturalizations 2019 Data Tables” to download ZIP
file and then select “fy2019_table20.xlsx” within ZIP file).
The majority’s interpretation of “reside permanently” would
also presumably extend to the derivative citizenship statutes
in place going back to 1907, and another 6.5 million people
became naturalized citizens between 1907 and 1940. See id.
If these many millions of persons who naturalized over this
nearly 100-year period had children born abroad who came to
the United States, those children (who are now adults) could
turn out to be derivative U.S. citizens, perhaps without
appreciating it.
This matters because derivative citizenship confers
important benefits. And there may now be substantial
questions about who is entitled to those benefits. Cheneau
asks to not be removed from the United States, which is one
very basic, though significant, benefit of citizenship. But
there are many others, “including rights to vote in federal
elections, to travel internationally with a U.S. passport, to
convey citizenship to one’s own children even if they are
born abroad, to be eligible for citizen-only federal jobs, and,
indeed, to be free of discrimination by Congress on the basis
of alienage.” Xia v. Tillerson, 865 F.3d 643, 650 (D.C. Cir.
2017). There are other benefits as well, such as being able to
run for certain public offices, serve on federal juries, and
access certain federal benefits. See, e.g., U.S. Const. art. I,
§ 2, cl. 2; id. § 3, cl. 3; 28 U.S.C. § 1865(b)(1); 8 U.S.C.
§§ 1612, 1613(a). The citizenship issue also arises in
criminal law, such as in illegal re-entry prosecutions. See
Forey-Quintero, 626 F.3d at 1324.
Courts, and the federal government more generally, may
now need to determine whether someone has “officially
manifested” enough intent to remain in the United States
54 CHENEAU V. GARLAND
permanently to qualify for the rights and benefits of
citizenship. And that is to say nothing of persons who were
previously denied these benefits because of their perceived
lack of U.S. citizenship, such as persons who were removed
from this country but who in fact were derivative citizens like
Cheneau and may now claim they should be allowed to
reenter.
That the majority’s interpretation raises more questions
than it answers is another sign that our Court’s new
interpretation is incorrect. I would have thus held, consistent
with the statutory text, its history, and our prior precedent,
that Cheneau is not a derivative citizen. I therefore
respectfully dissent.