Edson Acevedo v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDSON ACEVEDO, No. 12-71237
Petitioner,
Agency No.
v. A077-360-202
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2015*
Pasadena, California
Filed August 24, 2015
Before: William A. Fletcher, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Paez
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ACEVEDO V. LYNCH
SUMMARY**
Immigration
The panel denied Edson Acevedo’s petition for review of
the Board of Immigration Appeals’ decision denying his
claim that he derived citizenship from his United States
citizen stepfather.
The panel held that Acevedo did not derive citizenship
under 8 U.S.C. § 1431(a) from his stepfather, who married his
non-citizen mother after he was born and never adopted him.
The panel found that the BIA correctly concluded in Matter
of Guzman-Gomez, 24 I. & N. Dec. 824 (BIA 2009), that the
definition of “child” in § 1101(c)(1), the portion of the
Immigration and Nationality Act that applies to citizenship
and naturalization, does not include stepchildren. The panel
also found that Congress did not intend § 1101(b)’s definition
of child, which does include stepchildren, to apply to
§ 1431(a).
COUNSEL
Eduardo A. Paredes, Law Office of Eduardo A. Paredes, Los
Angeles, California, for Petitioner-Appellant.
Stuart F. Delery, Principal Deputy Assistant Attorney
General, United States Department of Justice, Civil Division;
Terri J. Scadron, Assistant Director, Meadow W. Platt, Trial
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ACEVEDO V. LYNCH 3
Attorney, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C. for Respondent-
Appellee.
OPINION
PAEZ, Circuit Judge:
Edson Acevedo petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal of the
Immigration Judge’s (“IJ”) decision denying his claim to
derivative citizenship and ordering him removed. Acevedo
argues that he derived citizenship under 8 U.S.C. § 1431(a)
from his United States citizen stepfather. We deny the
petition.
I.
Edson Acevedo was born in Mexico in 1987. Both of his
biological parents are Mexican nationals. In 2000, when he
was 12 years old, his mother married a United States citizen.
The following year, Acevedo’s stepfather filed a Petition for
Alien Relative on Acevedo’s behalf, and in 2002 Acevedo
was admitted to the United States as a lawful permanent
resident. Acevedo’s stepfather did not legally adopt him.
In 2008, Acevedo pled guilty to a charge of domestic
violence in violation of California Penal Code section
273.5(a). Acevedo was initially granted probation, but
violated its terms, and was ultimately sentenced to two years
of imprisonment. In January 2010, the Department of
Homeland Security filed a Notice to Appear, charging
Acevedo with being subject to removal as an alien convicted
4 ACEVEDO V. LYNCH
of a crime of domestic violence under 8 U.S.C.
§ 1227(a)(2)(E)(i).
Acevedo argued before the IJ that he derived citizenship
from his stepfather under 8 U.S.C. § 1431(a). The IJ
concluded that the BIA’s decision in Matter of Guzman-
Gomez, 24 I. & N. Dec. 824 (B.I.A. 2009), foreclosed this
argument, sustained the removability charge, and ordered
Acevedo removed. Acevedo appealed; the BIA affirmed the
IJ’s decision and dismissed the appeal. Acevedo filed a
timely petition for review in this court.
II.
We have jurisdiction to review Acevedo’s claim that he
is a U.S. citizen under 8 U.S.C. § 1252(b)(5). The parties do
not dispute the facts of the case, and therefore we need not
transfer this case to the district court. Id. § 1252(b)(5)(A).
Where, as here, the BIA conducts an independent review
of the IJ’s findings and legal conclusions, we review the
BIA’s decision and not that of the IJ. Romero-Ruiz v.
Mukasey, 538 F.3d 1057, 1061 (9th Cir. 2008). “We review
de novo the legal questions involved in a claim that a person
is a national of the United States.” Id. And, “[b]ecause the
INA explicitly places the determination of nationality claims
solely in the hands” of the federal courts, “we are not required
to give [deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984)] to the
agency’s interpretation of the citizenship laws.” Minasyan v.
Gonzales, 401 F.3d 1069, 1074 (9th Cir. 2005) (internal
quotation marks omitted).
ACEVEDO V. LYNCH 5
“There are two sources of citizenship, and two only: birth
and naturalization.” Scales v. INS, 232 F.3d 1159, 1164 (9th
Cir. 2000) (quoting Miller v. Albright, 523 U.S. 420, 423
(1998) (opinion of Stevens, J.)) (internal quotation marks
omitted). “Citizenship at birth can be acquired by being born
in the United States,” but “[i]f a person is not born in the
United States, he or she can acquire citizenship at birth only
as provided by Congress.” Id. Because Acevedo was born in
Mexico, we must determine whether Congress provides
stepchildren like Acevedo with derivative citizenship under
8 U.S.C. § 1431.
III.
In support of his claim to derivative citizenship, Acevedo
proposes two statutory interpretations, both relating to the
definitions of “child” in the Immigration and Nationality Act
(“INA”). The INA contains two definitions of “child.” One
applies to immigration-related provisions, and explicitly
includes stepchildren, 8 U.S.C. § 1101(b)(1).1 The other
applies to citizenship and naturalization provisions,
§ 1101(c)(1), and does not explicitly include stepchildren.2
1
8 U.S.C. § 1101(b)(1) provides, in part, “The term ‘child’ means an
unmarried person under twenty-one years of age who is . . . (B) a
stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the
status of stepchild occurred.”
2
8 U.S.C. § 1101(c)(1) provides that
[t]he term ‘child’ means an unmarried person under
twenty-one years of age and includes a child
legitimated under the law of the child’s residence or
domicile, or under the law of the father’s residence or
domicile, whether in the United States or elsewhere,
6 ACEVEDO V. LYNCH
Relatedly, 8 U.S.C. § 1431(a), on which Acevedo relies,
provides derivative citizenship for foreign-born children of
U.S. citizens, while § 1431(b) provides for such citizenship
only for adopted children.3 Section 1431(b) refers to the
definition of “child” in § 1101(b), but only in reference to
“the requirements applicable to adopted children.” 8 U.S.C.
and, except as otherwise provided in sections 1431 and
1432 of this title, a child adopted in the United States,
if such legitimation or adoption takes place before the
child reaches the age of 16 years [with certain
exceptions], and the child is in the legal custody of the
legitimating or adopting parent or parents at the time of
such legitimation or adoption.
3
8 U.S.C. § 1431 provides:
(a) In general
A child born outside of the United States
automatically becomes a citizen of the United States
when all of the following conditions have been
fulfilled:
(1) At least one parent of the child is a citizen of
the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The 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.
(b) Adoption
Subsection (a) of this section shall apply to a child
adopted by a United States citizen parent if the child
satisfies the requirements applicable to adopted children
under section 1101(b)(1) of this title.
ACEVEDO V. LYNCH 7
§ 1431(b). Acevedo contends that if the term child in
§ 1431(a) is controlled by the definition of child in
§ 1101(c)(1), then we should read § 1101(c)(1) to include
stepchildren, just as § 1101(b)(1) does. Alternatively, he
contends that the term child in § 1431(a) implicitly
incorporates the definition of child in § 1101(b)(1),
something that § 1431(b) expressly does, though, again, only
in reference to that section’s “requirements applicable to
adopted children.”
A.
Agreeing with the IJ, the BIA rejected Acevedo’s first
argument by relying on its decision in Matter of Guzman-
Gomez. Although we do not owe Chevron deference to the
BIA when it interprets citizenship laws, see Minasyan, 401
F.3d at 1074, we agree with the BIA’s conclusion and reject
Acevedo’s proffered interpretation of § 1101(c)(1) as
including stepchildren. Accord United States v. Sarwari,
669 F.3d 401, 408 & n.5 (4th Cir. 2012).
The material facts of Guzman-Gomez are
indistinguishable from Acevedo’s: Guzman-Gomez argued
that he derived citizenship under § 1431(a) from his
stepfather, who did not legally adopt him and who married
his noncitizen mother after he was born. 24 I. & N. Dec. at
824–25. The BIA concluded that “comparison of sections
[1101(b)(1) and (c)(1)] shows that when Congress wants the
term ‘child’ to encompass stepchildren for some purpose
under the Act, it knows how to make its intention clear in that
regard.” Id. at 827. The BIA relied on the “well established”
principle that “a negative inference may reasonably be drawn
from the exclusion of language from one statutory provision
that is included in other provisions of the same statute” to
8 ACEVEDO V. LYNCH
conclude that Congress’s omission of stepchildren from
§ 1101(c)(1) was intentional. Id.; see also INS v.
Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (stating the same
principle).
If the only evidence of congressional intent were the
observation that stepchildren are included in subsection (b),
but excluded from subsection (c), that negative inference
might not be conclusive here. After all, subsection (b) also
includes “a child born in wedlock,” 8 U.S.C. § 1101(b)(1)(A),
while subsection (c) does not explicitly list such a person,
instead noting only that the term “child” “includes” certain
legitimated and adopted children, id. § 1101(c)(1). Congress
surely intended biological children born in wedlock to U.S.
Citizens to qualify as “children” for naturalization purposes,
yet such children, like stepchildren, are not explicitly
mentioned in subsection (c).
As the BIA pointed out, however, legislative history also
undermines Acevedo’s argument. The BIA in Guzman-
Gomez also examined the legislative history of the first
version of the INA, the McCarran-Walter Act of 1952, in
which the two definitions of child originated. Id. at 827–28.
That history shows that a Senate subcommittee (the Special
Subcommittee to Investigate Immigration and Naturalization,
a subcommittee of the Senate Committee on the Judiciary)
prepared a report on proposed changes to the immigration
system and “affirmatively disclaimed any intention to change
the existing law” with respect to derivative citizenship, id. at
828, which then provided that “[s]tepchildren do not derive
citizenship through the naturalization of a stepparent.” S.
Rep. No. 81-1515, at 707 (1950).
ACEVEDO V. LYNCH 9
While the question addressed by the Senate report was not
precisely the one at issue here — the question for us is not
whether a stepchild derives citizenship when his stepparent
naturalizes, but whether he derives citizenship when his
biological parent marries a person who is already a U.S.
citizen — the report convinces us that the inclusion of
“stepchild” in the definition applicable to the INA’s
immigration provisions, and the omission of it from the
definition applicable to the naturalization provisions, was
purposeful. We therefore give it the intended effect and hold
that the definition of “child” in § 1101(c)(1) does not include
stepchildren.
B.
The BIA’s decision in Matter of Guzman-Gomez did not
address Acevedo’s second argument, that the reference to
8 U.S.C. § 1101(b)(1) contained in 8 U.S.C. § 1431(b) should
be read also to apply to 8 U.S.C. § 1431(a). However, canons
of construction, as well as the legislative history of the
section, which we use as an interpretive tool to understand
Congress’s purpose in enacting it, lead us to reject Acevedo’s
claim.
“[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 (alteration in original). In
§ 1431(b), Congress expressly referenced § 1101(b)’s
definition of child, which includes stepchildren. Because
Congress did not similarly reference § 1101(b)’s definition in
§ 1431(a), we must infer that Congress did not intend that
definition to apply to § 1431(a). Rather, we infer that
10 ACEVEDO V. LYNCH
Congress intended to apply the INA’s default definition. That
definition is supplied by § 1101(c), which applies generally
to the INA’s citizenship provisions and, as we have held, does
not include stepchildren.
Moreover, § 1431(b) does not incorporate wholesale the
definition of child found in § 1101(b)(1). Instead, it provides
that “[s]ubsection (a) of this section shall apply to a child
adopted by a United States citizen parent if the child satisfies
the requirements applicable to adopted children under section
1101(b)(1) of this title.” 8 U.S.C. § 1431(b). We do not read
the reference to § 1101(b)(1) in § 1431(b) to extend further
than incorporation of the requirements applicable to adopted
children listed in the former. Acevedo was never adopted, so
the requirements applicable to adopted children under that
subsection do not apply.
Finally, the purpose of § 1431, which was to streamline
adoptions abroad, does not support Acevedo’s interpretation.
See 146 Cong. Rec. 18,493–94 (2000) (statement of Rep.
Smith explaining purpose of Act); H.R. Rep. No. 106–852, at
11–12 (2000) (Department of Justice letter to Congress).
Congress was so focused on adopted children, in fact, that an
early version provided adoptees alone with a special form of
automatic derivative citizenship. See H.R. Rep. No. 106–852,
at 10. As the Department of Justice pointed out in a letter to
the House Committee on the Judiciary, which was
responsible for the bill, such a law would “favor adopted,
non-citizen children of United States citizens over biological,
non-citizen children of United States citizens.” Id. at 11
(emphasis added). Instead, the Department of Justice
proposed and provided “alternative draft legislation that . . .
creat[ed] a standard set of conditions for foreign-born
children . . . to acquire citizenship.” Id. at 11–12. The
ACEVEDO V. LYNCH 11
Department assured the committee that the alternative draft
legislation “provides for fair treatment of all biological and
adopted children in terms of acquisition of United States
citizenship.” Id. at 12 (emphasis added).
The House amended the bill to conform to the alternative
version the Department of Justice proposed, and both the
House and the Senate passed that version without further
amendment. Child Citizenship Act of 2000, Pub. L. No.
106–395, 114 Stat. 1631. Nothing in the legislative history,
therefore, indicates any intention to broaden the derivative
citizenship provisions previously extant to encompass
stepchildren.
As Acevedo makes no other challenge, we deny the
petition.
PETITION DENIED.