Nwozuzu v. Holder

11-5089-ag
Nwozuzu v. Holder
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
August Term 2012
(Argued: April 9, 2013 Decided: August 12, 2013)
Docket No. 11-5089-ag
K ELECHI G ERALD N WOZUZU , AKA G ERALD K. N WOZUZU ,
Petitioner,
v.
E RIC H. H OLDER , J R ., U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
Before:
W ALKER and C HIN , Circuit Judges, and
R ESTANI , Judge. *
Petition for review of a decision of the Board of
Immigration Appeals dismissing an appeal of an immigration
judge's decision denying petitioner's motion to terminate
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
his removal proceedings. Petitioner contends that his
removal is improper because he is a United States citizen
by operation of a former provision of the Immigration and
Nationality Act. We grant the petition for review and
remand this matter to the Board of Immigration Appeals for
further proceedings not inconsistent with this opinion.
Petition GRANTED and case REMANDED.
JOSHUA E. BARDAVID, Law Office of
Joshua E. Bardavid (Theodore N.
Cox, Law Office of Theodore N.
Cox, on the brief), New York,
New York, for Petitioner.
ERNESTO H. MOLINA, Assistant
Director (Stuart F. Delery,
Acting Assistant Attorney
General, Jaime M. Dowd, Senior
Litigation Counsel, on the
brief), Office of Immigration
Litigation, Civil Division, U.S.
Department of Justice,
Washington, District of
Columbia, for Respondent.
C HIN , Circuit Judge
Petitioner Kelechi Gerald Nwozuzu was born in
Nigeria and came to this country when he was four years
-2-
old. When he was seventeen, his parents were naturalized
as United States citizens. The question presented is
whether Nwozuzu's failure to become a lawful permanent
resident before turning eighteen years old bars him from
claiming derivative citizenship from his parents. We hold
it does not.
STATEMENT OF THE CASE
A. Section 321(a)
In considering Nwozuzu's claim, this Court must
"apply the law in effect when [petitioner] fulfilled the
last requirement for derivative citizenship." Ashton v.
Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). Here, the law in
effect when seventeen-year old Nwozuzu applied for lawful
permanent residence status after his parents were
naturalized was former section 321(a) of the Immigration
and Nationality Act (the "INA"), 8 U.S.C. § 1432(a) (1994)
(repealed 2000) ("section 321(a)"). 1 Section 321(a)
provided in pertinent part:
1
This section was repealed by the Child Citizenship Act
of 2000 § 103, Pub. L. 106-395, 114 Stat. 1631, 1632.
-3-
A child born outside of the United
States of alien parents . . .
becomes a citizen of the United
States upon fulfillment of the
following conditions:
(1) The naturalization of both
parents; . . .
. . . and if
(4) Such naturalization takes place
while such child is under the
age of eighteen years; and
(5) Such child is residing in the
United States pursuant to a
lawful admission for permanent
residence at the time of the
naturalization of the parent
last naturalized . . . or
thereafter begins to reside
permanently in the United States
while under the age of eighteen
years.
8 U.S.C. § 1432(a). 2
A petitioner could satisfy the requirements of
section 321(a)(5) in two ways. Under the first clause, a
minor who was a lawful permanent resident automatically
2
In circumstances where one parent was deceased, the
parents were legally separated, or the child was born out of
wedlock (with paternity not established by legitimation), the
naturalization of one parent -- the surviving parent, the parent
with legal custody, or the mother, respectively -- was
sufficient. 8 U.S.C. § 1432(a)(2)-(3), (5).
-4-
became a citizen at the time the last parent was
naturalized. Under the second clause, a minor could derive
citizenship if, after the last parent naturalized, he
"beg[an] to reside permanently in the United States while
under the age of eighteen years." Id. It is this second
clause upon which Nwozuzu's claim is based.
B. Facts
The facts are undisputed. Nwozuzu was born on
March 8, 1977 in Nigeria. In 1982, he entered the United
States as the child of F-1 nonimmigrant students. In 1990,
his father filed an immediate relative visa petition, Form
I-130, on Nwozuzu’s behalf, which was approved in March
1993. In 1994, both his parents were naturalized as U.S.
citizens. On February 6, 1995, at the age of seventeen,
Nwozuzu applied for an adjustment of status to become a
lawful permanent resident. His application was not decided
at that time. 3
3
The record is unclear as to why the application was
not decided. Nwozuzu’s father recalled that the application was
not approved because Nwozuzu did not have his passport at the
initial hearing, which was then rescheduled for a date after he
left the country, as discussed below. In his brief to the BIA,
-5-
Five months later, Nwozuzu filed a Form I-131
"Application for Travel Document" to visit his ailing
grandmother in Nigeria, but he left for Nigeria before that
application was approved. On August 21, 1995, Nwozuzu was
denied readmittance because he had left the country without
obtaining a travel document. He was readmitted on December
12, 1998, after becoming a lawful permanent resident at the
age of 21.
On January 7, 2004, Nwozuzu was convicted of: (1)
criminal possession of a weapon in the third degree,
involving a loaded firearm, in violation of N.Y. Penal Law
§ 265.02(4); (2) criminal possession of a weapon in the
fourth degree, involving a loaded firearm, in violation of
N.Y. Penal Law § 265.01(1); and (3) unlawful possession of
marijuana, in violation of N.Y. Penal Law § 221.05.
C. Procedural History
On June 16, 2005, the Department of Homeland
Security ("DHS") filed a Notice to Appear charging Nwozuzu
with removability under section 237(a)(2)(C) of the INA, 8
however, Nwozuzu represented that the initial hearing was
rescheduled because of "school conflicts."
-6-
U.S.C. § 1227(a)(2)(C), based on his 2004 convictions for
possession of a firearm. 4
Nwozuzu applied for citizenship in August 2005 and
April 2006, but his application was not approved.
On October 6, 2006, the immigration judge (the
"IJ") held that DHS failed to meet its burden to establish
alienage and terminated proceedings against Nwozuzu. DHS
appealed the decision to the Board of Immigration Appeals
(the "BIA"). On September 10, 2008, the BIA issued its
decision (the "September 10 decision"), sustaining DHS's
appeal and remanding the case to the IJ to complete removal
proceedings. See Matter of Nwozuzu, 24 I. & N. Dec. 609,
616 (BIA 2008).
In the September 10 decision, the BIA read the
phrase "begins to reside permanently" in section 321(a) to
require Nwozuzu to have become a lawful permanent resident
before turning eighteen to derive citizenship from his
naturalized parents. Id. at 612. In reaching that
conclusion, the BIA considered the definition of the words
4
On April 16, 2010, DHS lodged an additional charge
pursuant to section 237(a)(2)(B)(i) of the INA, 8 U.S.C.
§ 1227(a)(2)(B)(i), based on his 2004 marijuana conviction.
-7-
"residence," "permanent," and "lawfully admitted for
permanent residence." Id. at 612-13. The BIA also noted
that the "residing permanently" language in the INA's
definition of "lawfully admitted for permanent residence"
in section 101(a)(20) "closely tracks" the language "begins
to reside permanently" in section 321(a). Id. at 613-14.
It therefore concluded that this similarity "strongly
suggests that Congress intended to impose a requirement
that an alien must obtain lawful permanent residence before
the age of 18 to acquire derivative citizenship." Id. The
BIA also held that failing to read "reside permanently" to
require lawful permanent resident status would "effectively
negate" the lawful permanent resident requirement of the
first clause, rendering it surplusage. Id. at 614.
After additional proceedings before the IJ and the
BIA, on November 17, 2011, the BIA dismissed Nwozuzu's
appeal of the IJ's denial of his request to terminate the
proceedings. In re Nwozuzu, No. A046 651 723 (BIA Nov. 17,
2011), aff'g No. A046 651 723 (Imm. Ct. N.Y.C. June 9,
2011). The BIA relied primarily on the reasoning in its
-8-
September 10 decision concluding that Nwozuzu did not
derive citizenship from his parents because he did not
become a lawful permanent resident before turning eighteen.
The BIA issued a final order of removal on
November 17, 2011, and Nwozuzu timely filed this Petition
for Review on December 9, 2011.
DISCUSSION
As a general matter, this Court reviews BIA
determinations of law de novo. Iavorski v. U.S. INS, 232
F.3d 124, 128 (2d Cir. 2000). Agency interpretations of
statutes are reviewed under Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
Under the first prong of Chevron, this Court determines
"whether Congress has directly spoken to the precise
question at issue." Id. at 842. "If the intent of
Congress is clear, that is the end of the matter . . . ."
Id. If, however, there is ambiguity, the second prong of
Chevron requires that this Court defer to an agency's
interpretation of the statute if that interpretation is
reasonable. Id. at 843.
-9-
We conclude that, both in the text of the statute
and its legislative history, Congress has spoken directly
to "the precise question at issue." Section 321(a)
provided that a child whose parents were naturalized and
who "beg[an] to reside permanently in the United States
while under the age of eighteen years" could obtain
derivative citizenship. 8 U.S.C. § 1432(a)(5) (1994); see
also INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)
("[W]hether Congress intended the two standards to be
identical is a pure question of statutory construction for
the courts to decide."). As we discuss below, this was
true even for a child who was not lawfully admitted for
permanent residence before turning eighteen.
A. The Statutory Text
When interpreting a statutory provision, we begin
with the language of the statute. Saks v. Franklin Covey
Co., 316 F.3d 337, 345 (2d Cir. 2003) ("Every exercise in
statutory construction must begin with the words of the
text."). If the statutory terms are unambiguous, we
construe the statute according to the plain meaning of its
-10-
words. See Rubin v. United States, 449 U.S. 424, 430
(1981); Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 226,
231 (2d Cir. 1998). The plain meaning is best discerned by
"looking to the statutory scheme as a whole and placing the
particular provision within the context of that statute. "
Saks, 316 F.3d at 345. If, however, the terms are
ambiguous or unclear, we may consider legislative history
and other tools of statutory interpretation. Greenery, 150
F.3d at 231; Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067,
1073 (2d Cir. 1993). Applying these general rules of
statutory construction, we conclude that Congress intended
for the two clauses in section 321(a)(5) to mean different
things.
First, the two clauses use different words:
Such child is residing in the United
States pursuant to a lawful
admission for permanent residence at
the time of the naturalization of
the parent last naturalized . . . or
thereafter begins to reside
permanently in the United States
while under the age of eighteen
years.
-11-
8 U.S.C. § 1432(a)(5) (1994) (emphasis added). This alone
is instructive, for "[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." Cardoza-Fonseca, 480
U.S. at 432 (quotation and alteration omitted); see also
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002).
Second, these phrases have plainly different
meanings. "[L]awfully admitted for permanent residence" is
a term of art. See H.R. Rep. No. 82-1365 (1952), reprinted
in 1952 U.S.C.C.A.N. 1653, 1684; see also Gooch v. Clark,
433 F.2d 74, 78-79 (9th Cir. 1970). As defined by the INA,
it means "the status of having been lawfully accorded the
privilege of residing permanently in the United St ates as
an immigrant in accordance with the immigration laws, such
status not having changed." 8 U.S.C. § 1101(a)(20) (1994).
That phrase -- that term of art -- does not appear in the
second clause. Rather, section 321(a)(5) employs the
generic phrase "reside permanently," which is not defined
-12-
by the INA. But see id. § 1101(a)(31) (defining
"permanent" as "a relationship of continuing or lasting
nature, as distinguished from temporary, but a relationship
may be permanent even though it is one that may b e
dissolved eventually at the instance either of the United
States or of the individual, in accordance with law").
Our conclusion that these two phrases are not
coextensive is further reinforced by other sections of the
INA, in which the phrases "lawfully admitted for permanent
residence" and "reside permanently" are used in a manner
that suggest their meanings are distinct. For example,
before it was revised in 2000, section 322 allowed parents
to request a certificate of citizenship for a child if,
among other requirements, "the child [was] residing
permanently in the United States with the citizen parent,
pursuant to a lawful admission for permanent residence." 8
U.S.C. § 1433(a)(5)(A) (1994) (emphasis added) (amended
2000). If one could only reside permanently in the United
States as a lawful permanent resident, then the phrase
"pursuant to a lawful admission for permanent residence "
-13-
would have been superfluous. See Duncan v. Walker, 533
U.S. 167, 174 (2001) (a statute must be construed "to give
effect, if possible, to every clause and word " (quotation
omitted)).
Similarly, section 327 provides that, in the case
of former citizens who lost their citizenship by fighting
for other countries during World War II, the former citizen
shall not be naturalized unless he "has been lawfully
admitted to the United States for permanent residence and
intends to reside permanently in the United States." 8
U.S.C. § 1438(b)(2) (2012)(emphasis added). As used in
section 327, "lawfully admitted . . . for permanent
residence" and "reside permanently" are clearly separate
clauses that must carry different meanings. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (where
Congress "uses certain language in one part of the statute
and different language in another, the court assumes
different meanings were intended" (internal quotation marks
and citation omitted)).
-14-
Third, our precedent has already established that
to "reside permanently" in section 321(a) requires
something less than a lawful admission of permanent
residency. See Ashton v. Gonzales, 431 F.3d 95, 99 (2d
Cir. 2005). 5 In Ashton, the government sought to exclude a
petitioner who was not a lawful permanent resident at the
time his parent was naturalized. The government argued
that "to reside permanently," an alien must be a lawful
permanent resident of the United States. See id. at 98-99.
We, however, rejected the arguments advanced by the
government and concluded that, apart from actually being
lawfully admitted for permanent residency, "some lesser
official objective manifestation" of beginning to reside
permanently would satisfy the requirements of section
5
We recognize that the two other circuits to have
considered this issue, the Ninth Circuit and the Eleventh
Circuit, have held to the contrary. See United States v. Forey-
Quintero, 626 F.3d 1323, 1326-27 (11th Cir. 2010); Romero-Ruiz
v. Mukasey, 538 F.3d 1057, 1062-63 (9th Cir. 2008). The court
in Forey-Quintero relied heavily on the BIA's reasoning in In re
Nwozuzu, which, as discussed herein, we reject. See Forey-
Quintero, 626 F.3d at 1327. Moreover, neither court examined
the legislative history behind the evolution of the statute,
which supports reading the two clauses of section 321(a)
distinctly. See id.; Romero-Ruiz, 538 F.3d at 1062-63. Hence,
we are not persuaded by the reasoning of the Ninth and Eleventh
Circuits.
-15-
321(a). See id. at 99 (but finding that petitioner's
subjective intent alone did not meet that threshold).
Finally, this interpretation of section 321(a)
provides meaning to both of its clauses without rendering
either superfluous. The first clause addresses the class
of minors who were "lawfully admitted for permanent
residence" at the time the second parent was naturalized;
they automatically derived citizenship upon the parent's
naturalization. By contrast, the second clause addresses
minors who, at the time the second parent was naturalized,
either lived abroad or lived in the United States but had
not been "lawfully admitted for permanent residence."
These minors 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. See
id. at 99 (rejecting notion that subjective intent alone
satisfies section 321(a)(5), but suggesting that applying
for permanent resident status would meet the requirement).
-16-
Thus, under section 321(a)(5), a minor derived
citizenship if the second parent was naturalized and he
thereafter "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.
B. Legislative History
To the extent there is any ambiguity in the words
of the statute, the legislative history of section 321(a)
lends further support to our interpretation, in two
respects. First, the history of the laws governing the
derivative naturalization of children demonstrates clearly
that Congress intended "lawful admission for permanent
residence" and "reside permanently" to mean different
things. Second, the legislative history also makes clear
Congress's intent to preserve the family unit and to keep
families intact.
1. Derivative Citizenship Laws
The first statute allowing foreign-born children
to derive citizenship from their parents' naturalization
-17-
was enacted as part of the Naturalization Act of 1790. See
Ch. 3 § 1, 1 Stat. 103, 104. This provision, amended
slightly by subsequent Naturalization Acts, was eventually
codified as section 2172 of the Revised Statutes of the
United States:
The children of persons who have
been duly naturalized under any law
of the United States, . . . being
under the age of twenty-one years at
the time of the naturalization of
their parents, shall, if dwelling in
the United States, be considered as
citizens thereof . . . .
Rev. Stat. § 2172 (repealed 1940)(emphasis added), quoted
in United States ex rel. Patton v. Tod, 297 F. 385, 387 (2d
Cir. 1924); see also Zartarian v. Billings, 204 U.S. 170,
173-74 (1907) (noting section 2172 was largely unchanged
since the 1790s). For more than a century, the derivative
citizenship statute simply required that the foreign child
be "dwelling within the United States," but did not
explicitly require that such "dwelling" be "permanent" or
even "lawful." Indeed, at the time of its original
enactment, there were no federal immigration laws with
which aliens had to comply. See Patton, 297 F. at 394.
-18-
Based on the plain language of section 2172, it became
well-established that a foreign-born child "dwelling within
the United States" at the time her parents were naturalized
automatically became a citizen. See id. at 389-90.
It was also generally presumed that section 2172
granted citizenship to children who were living abroad at
the time their parents were naturalized and later began
"dwelling in the United States," but the statutory language
was ambiguous in this regard. See id. at 390-92; Charles
Gordon et al., 7 Immigration Law & Procedure § 98.03[3][f]
(rev. ed. 2013). It was unclear when these children had to
begin "dwelling in the United States" and when they would
be deemed citizens. See Zartarian, 204 U.S. at 174 (noting
that section 2172 raised these questions, but they were not
before the Court). To clarify these issues, Congress
enacted section 5 of the Citizenship Act of 1907 (the "1907
Act"), which provided:
[A] child born without the United
States of alien parents shall be
deemed a citizen of the United
States by virtue of the
naturalization of . . . the parent:
Provided, That such naturalization
-19-
or resumption takes place during the
minority of such child; And provided
further, That the citizenship of
such minor child shall begin at the
time such minor child begins to
reside permanently in the United
States.
Ch. 2534 § 5, 34 Stat. 1228, 1229 (repealed 1940); see also
Patton, 297 F. at 392-93. Thus, the "reside permanently"
requirement was first introduced in section 5 of the 1907
Act; section 2172, until it was repealed in 1940, continued
to require merely "dwelling in the United States."
Moreover, neither statute used the term "lawful." 6
6
Several cases from this era construed both Rev. Stat.
§ 2172 and section 5 of the 1907 Act as requiring that the alien
child have "legally landed" in the United States before they
could be deemed to be "dwelling" or "resid[ing] permanently"
here. Kaplan v. Tod, 267 U.S. 228, 230 (1925); Zartarian, 204
U.S. at 175; United States ex rel. Patton, 297 F. at 394. Each
of these cases involved a child who was expressly excluded from
admission because she was carrying a contagious disease, see
Zartarian, 204 U.S. at 172-73, was "feeble minded," Kaplan, 267
U.S. at 229, or was "an imbecile," Patton, 297 F. at 388. This
Court has previously determined that these outdated cases are
"unhelpful" in interpreting section 321 of the INA. See Ashton,
431 F.3d at 98-99. In any event, this case, as in Ashton, is
distinguishable because Nwozuzu "was admitted legally into the
United States . . . and until he was convicted of [his crimes],
he did not belong to a class of persons categorically forbidden
from immigrating." Id. at 99. Therefore, we need not consider
whether the "reside permanently" clause in section 321 carries
an implicit "lawful entry" requirement.
-20-
Because of the ambiguity surrounding Rev. Stat.
§ 2172, courts construed that provision and section 5 of
the 1907 Act as addressing two separate situations:
Under R.S.U.S. Sec. 2172, a foreign-
born minor child dwelling in the
United States at the time of the
naturalization of the parent
automatically becomes an American
citizen. Under section 5 of the Act
of March 2, 1907, a foreign-born
child, not in the United States when
the parent is naturalized, becomes a
citizen only from such time as,
while still a minor, it begins to
reside permanently in the United
States.
Patton, 297 F. at 393; see also Gordon, supra, § 98.03[2]
("Although it dealt with the same subject matter as section
2172 of the Revised Statutes, the 1907 Act used variant
terminology and did not mention, modify, or repeal the
former statute."). Congress finally combined these two
separate provisions into section 314 of the Nationality Act
of 1940:
A child born outside of alien
parents, . . . becomes a citizen of
the United States upon fulfillment
of the following conditions:
-21-
(a) The naturalization of both
parents; . . .
. . . and
(e) Such child is residing in the
United States at the time of the
naturalization of the parent
last naturalized under
subsection (a) . . . or
thereafter begins to reside
permanently in the United States
while under the age of eighteen
years.
Ch. 876 § 314, 54 Stat. 1137, 1145-46 (repealed 1952).
Because there was no longer any ambiguity making it
necessary to distinguish between children present at the
time of their parents' naturalization and those who arrived
afterwards, Congress could have simply imposed a single
requirement of "permanent residency" beginning while the
child was still a minor. Instead, it retained the dual
clause framework: children could either "resid[e] in the
United States" at the time their parents were naturalized,
or they could later "reside permanently" so long as they
began doing so while still a minor.
Congress maintained this dual framework when it
passed section 321 of the Immigration and Nationality Act
-22-
of 1952, which added the lawful permanent residency
requirement. See INA § 321(a)(5), ch. 477, 66 Stat. 163,
245 (1952) (codified as amended at 8 U.S.C. § 1432(a)(5)
(1994)) (repealed 2000). Importantly, Congress altered
only the first clause of section 314(e) of the 1940 Act,
changing the bare phrase "residing in the United States" to
"residing . . . pursuant to a lawful admission for
permanent residence." Id. Congress did not, however,
significantly alter the second clause, letting stand the
requirement that an alien child need only "begin[] to
reside permanently in the United States" while still a
minor. See id.According to the House Report accompanying the
INA, the term "lawfully admitted for permanent residence"
was a new term of art carrying "especial significance
because of its application to numerous provisions of the
bill." H.R. Rep. No. 82-1365 (1952), reprinted in 1952
U.S.C.C.A.N. 1653, 1684. Therefore, when Congress used
that term -- in both the text of the statute and in the
House Report's discussion of section 321 -- only in
-23-
reference to residency at the time of the parents'
naturalization and not in reference to residency beginning
thereafter, we must presume that it did so deliberately.
See INA § 321(a)(5); H.R. Rep. No. 82-1365, reprinted in
1952 U.S.C.C.A.N. at 1739-40. Given the "especial
significance" of that term, we cannot assume Congress
intended the phrase "reside permanently" -- which had been
carried over, unaltered, from previous statutes since 1907
-- to be shorthand for the new term of art. We reasonably
conclude from this history that Congress intended the two
clauses, which had always used different terms and
functioned separately, to continue to have different
meanings. See Sosa, 542 U.S. at 711 n.9.
Indeed, there is a logical reason for requiring
lawful permanent residence at the time of naturalization
but only permanent residence thereafter: derivative
citizenship is granted automatically. See INA § 321
(entitled "Child Born Outside of United States of Alien
Parent; Conditions Under Which Citizenship Automatically
Acquired" (emphasis added)). Requiring lawful admission
-24-
for permanent residence at the time of the parents'
naturalization 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.
Imposing such a requirement on minor children
either living abroad or residing temporarily in the United
States at the time of their parents' naturalization made
little sense. Because their parents had already become
citizens, children in this situation automatically acquired
citizenship once they were residing in the United States
and demonstrated their objective intent to remain
"permanently." Requiring them to obtain "lawful admission
for permanent residence" would have been a meaningless
formality because these children did not require lawful
permanent resident status. It 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
-25-
their parents. 8 U.S.C. § 1432(a)(5) (1994). Congress
clearly intended a different result:
Congress enacted the derivative
citizenship statute to ensure that
"alien children whose real interests
were located in America with their
custodial parent, and not abroad,
should be automatically
naturalized."
Duarte-Ceri v. Holder, 630 F.3d 83, 89-90 (2d Cir. 2010)
(quoting Bustamante-Barrera v. Gonzalez, 447 F.3d 388, 397
(5th Cir. 2006)). To be sure, obtaining "lawful admission
for permanent residence" remained the most certain way of
proving the objective intent to "reside permanently," see
Ashton, 431 F.3d at 99, but it was not the only way to
carry this burden.
2. Preservation of the Family Unit
Our decision not to read a lawful permanent
resident requirement into the second clause of section
321(a)(5) is consistent with the prevailing purpose of the
INA:
[The INA] implements the underlying
intention of our immigration laws
regarding the preservation of the
family unit. An American citizen
-26-
will have the right to bring his
alien spouse (wife or husband) as a
nonquota immigrant. Similarly, he
will be able to bring his alien
minor child as a nonquota immigrant.
H.R. Rep. No. 82-1365, reprinted in 1952 U.S.C.C.A.N. at
1680. Clearly, Congress did not intend for the children of
U.S. citizens to be strictly bound by all the formal
requirements of the immigration laws applicable to adults.
See, e.g., INS v. Errico, 385 U.S. 214, 220 (1966)
(discussing 1957 amendments to the INA and explaining that
"Congress felt that, in many circumstances, it was more
important to unite families and preserve family ties than
it was to enforce strictly" various restrictions in the
immigrations laws). Moreover, this Court in Duarte-Ceri
has specifically recognized that the derivative citizenship
statute
"implements the underlying intention
of our immigration laws regarding
the preservation of the family
unit." It is consistent with
Congress's remedial purposes,
therefore, to interpret the
statute's ambiguity with leniency,
and we should interpret the statute
here in a manner that will keep
families intact.
-27-
630 F.3d at 89-90 (citations omitted) (quoting H.R. Rep.
No. 82-1365, at 24, reprinted in 1952 U.S.C.C.A.N. at
1680).
This reasoning applies with equal force here. We
recognize that the alien applicant bears the burden of
establishing his eligibility for citizenship and , when we
interpret naturalization statutes, "doubts should be
resolved in favor of the United States and against the
claimant." Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637
(1967) (quotation marks omitted). Nevertheless, when
possible, we should also seek to "preserve[] rather than
extinguish[] citizenship," Duarte-Ceri, 630 F.3d at 88, and
be mindful of the "underlying intention of our immigration
laws regarding the preservation of the family unit," H.R.
Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N.
1653, 1680. Accordingly, while we conclude that the plain
language compels our reading of the statute, we would favor
this reading in any event because it furthers the intent of
Congress to keep families intact where possible.
-28-
C. The BIA's Interpretation
We conclude that the BIA's interpretation of
section 321(a) is unreasonable. First, relying in part on
the definitions of "permanent" and "residence," the BIA
held that anything less than lawful permanent resident
status cannot be "permanent," even if the petitioner
"maintains lawful status." Nwozuzu, 24 I. & N. Dec. at
613. It reasoned that lawful permanent residents are
"permanent" because they are guaranteed that status unless
they violate the law or abandon that status. Id. at 613
n.4. In contrast, "[a]n alien residing in this country
without authorization . . . may be required to leave at any
time." Id.
This reasoning is inconsistent with the text of
the statute and ignores the fact that there are a number of
groups that are permitted to stay in this country
permanently without being lawful permanent residents,
including crewman on fishing vessels and nonimmigrant alien
students (G-4 visa holders). See, e.g., Elkins v. Moreno,
435 U.S. 647, 666 (1978) ("Congress, while anticipating
-29-
that permanent immigration would normally occur through
immigrant channels, was willing to allow nonrestricted
nonimmigrant aliens to adopt the United States as their
domicile."); H.R. Rep. No. 82-1365, reprinted in 1952
U.S.C.C.A.N. 1653, 1696-97 (explaining that alien crewmen
on U.S. vessels are "enable[d] to reside permanently in the
United States without having been lawfully admitted for
permanent residence").
The BIA also considered the similarity between the
phrases "begins to reside permanently" and "lawfully
admitted for permanent residence," the latter of which is
defined in section 101(a)(20) of the INA as "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 Nwozuzu, 24
I. & N. Dec. at 613-14. But as previously discussed, this
Court in Ashton strongly suggested that the phrase "reside
permanently" is not the equivalent of lawful permanent
residence. See Ashton, 431 F.3d at 98-99 (declining to
-30-
"rule out that some lesser official objective manifestation
[other than lawful permanent residency] might also be
sufficient" to satisfy section 321(a)'s requirement).
The BIA further held that requiring anything less
than lawful permanent resident status in the second clause
would "effectively negate the lawful permanent residence
requirement of the first clause." Nwozuzu, 24 I. & N. Dec.
at 614. The BIA reasoned that a petitioner would rarely
need to show lawful permanent resident status because he
could meet the more relaxed requirement of the second
clause. Id. We reject this argument for the reasons
articulated above.
* * *
Thus, section 321(a) provided that, assuming the
other requirements were met, a child "under the age of
eighteen years" obtained derivative citizenship when his
parents were naturalized and the child was "residing in the
United States pursuant to a lawful admission for permanent
residence" or the child "thereafter beg[an] to reside
permanently in the United States while under the age of
-31-
eighteen years." 8 U.S.C. § 1432(a)(5) (1994). "[B]egins
to reside permanently" does not require "lawful permanent
resident" status. It does require, however, "some
objective official manifestation of the child’s permanent
residence." Ashton, 431 F.3d at 98-99 (suggesting that an
application for legal permanent residency would qualify as
an objective manifestation).
Here, Nwozuzu satisfied the conditions of section
321(a). He began to reside permanently in the United
States, while still under the age of eighteen, after his
parents were naturalized. His application of adjustment to
lawful permanent resident status on February 6, 1995 --
after his parents naturalized and when he was still
seventeen -- is an objective and official manifestati on of
his intent to reside permanently in the United States.
Additionally, Nwozuzu’s particular family
circumstances, including the presence and naturalization of
Nwozuzu’s parents and the eventual naturalization of all of
his siblings, although not sufficient on its own to
establish an objective manifestation of permanent
-32-
residency, further bolster our conclusion. See Duarte-
Ceri, 630 F.3d at 89-90 (noting the purpose of the statute
is to ensure that "alien children whose real interests were
located in America with their custodial parent, and not
abroad, should be automatically naturalized.") (quotation
marks omitted). Accordingly, he has satisfied the
requirements for derivative citizenship under section
321(a).
CONCLUSION
For the reasons set forth above, the petition is
GRANTED and the case is REMANDED to the BIA for proceedings
not inconsistent with this opinion.
-33-