17-1512
Jaen v. Sessions

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                          ____________________

                               August Term, 2017

(Argued: April 12, 2018                                Decided: August 13, 2018 )

                               Docket No. 17-1512

                              ____________________

LEVY ALBERTO JAEN,

                                Petitioner,

                   v.

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,

                                Respondent.

                              ____________________

Before: WINTER, POOLER, and PARKER, Circuit Judges.

      Levy Alberto Jaen petitions for review of the May 2, 2017 decision of the

Board of Immigration Appeals ordering him removed from the United States

pursuant to 8 U.S.C. §§ 1227(a)(1)(B) and 1227(a)(2)(B)(i). We agree with Jaen that

he acquired citizenship at birth through his parent, Jorge Boreland, and that the
government had no authority to detain him for an immigration violation or to

order him removed from the United States. Accordingly, on April 13, 2018, we

GRANTED the petition for review and ordered the government to immediately

release Jaen from custody and terminate all removal proceedings against him.

We indicated that an opinion would follow in due course.

      Granted.

                            ____________________

                        IAN SAMUEL (Andrea A. Saenz, Brooklyn Defender
                        Services, on the brief), Cambridge, MA, for Respondent
                        Levy Alberto Jaen.

                        RACHEL L. BROWNING, Trial Attorney (Keith I.
                        McManus, Assistant Director, on the brief), for Chad A.
                        Readler, Acting Assistant Attorney General,
                        Washington, D.C., for Respondent Jefferson B. Sessions III,
                        Attorney General of the United States.

                        Shailee Diwanji Sharma, Andrew A. Ruffino, on the brief,
                        Covington & Burling LLP, New York, N.Y. for Amici
                        Curiae Family Law Professors, Jamie R. Abrams,
                        University of Louisville Brandeis School of Law, Susan
                        Frelich Appleton, Washington University School of
                        Law, Barbara A. Atwood, University of Arizona Rogers
                        College of Law, Margaret B. Drew, University of
                        Massachusetts School of Law, Ann E. Freedman,
                        Rutgers Law School, Philip M. Genty, Columbia Law
                        School, Cynthia Godsoe, Brooklyn Law School, Martin
                        Guggenheim, New York University School of Law,
                                        2
                         Leslie Harris, University of Oregon School of Law,
                         Susan Hazeldean, Brooklyn Law School, Deseriee
                         Kennedy, Touro Law Center, Theo Liebmann, Maurice
                         A. Deane School of Law at Hofstra University, Solangel
                         Maldonado, Seton Hall Law School, Carlin Meyer, New
                         York Law School, Catherine J. Ross, George Washington
                         University Law School, Elizabeth Scott, Columbia Law
                         School, Barbara J. Stark, Maurice A. Deane School of
                         Law at Hofstra University, Edward Stein, Cardozo
                         School of Law, David B. Thronson, Michigan State
                         University College of Law, in support of Petitioner Levy
                         Alberto Jaen.

POOLER, Circuit Judge:

      On April 15, 2015, Levy Alberto Jaen was served with a Notice to Appear

charging him with removability under Sections 237(a)(1)(B) and 237(a)(2)(B)(i) of

the Immigration and Nationality Act (“INA”). 1 During the immigration

proceedings that followed, both before the Immigration Judge (“IJ”) and the

Board of Immigration Appeals (“BIA”), Jaen repeatedly raised the issue of

citizenship, claiming that he was a United States citizen and therefore

unremovable. On April 13, 2018, this Court filed an order granting Jaen’s petition




1Specifically, Jaen was charged with removability for overstaying his visitor visa,
8 U.S.C. § 1227(a)(1)(B), and having been convicted of crime related to a
controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i). He was served with the Notice to
Appear while incarcerated on the state drug charges.
                                         3
for review, determining that he is a United States citizen and not subject to

immigration detention or removal. The order effectuated his release from

immigration detention, terminated all removal proceedings against him, and

indicated an opinion would follow.

      We hold today that Jaen acquired United States citizenship at birth

through his United States citizen parent, Jorge Boreland, the husband of his

mother and his legal parent under the relevant section of the INA.

                                 BACKGROUND

      Jaen was born on May 12, 1972 in Panama. At the time of Jaen’s birth, his

mother, Leticia Rogers Boreland, was married to a man named Jorge Boreland,

who had been born in the Panama Canal Zone in 1927 and became a naturalized

United States citizen in 1961. Jaen’s Panamanian birth certificate, however, lists

Liberato Jaen as his father, a man with whom Leticia had an extramarital

relationship during her marriage to Jorge. Leticia and Jorge were married in

1952, had seven children together prior to the birth of Jaen (three of whom were

born in Panama, four of whom were born in the United States), and remained

married for approximately 47 years until Jorge died in 1999.



                                         4
      Jaen lived in Panama with his grandparents until he entered the United

States on a nonimmigrant visa on May 8, 1988 at the age of 15. He was raised as

the youngest child of the Boreland family and has remained in the United States

since his 1988 entry.

      In 2008, Jaen was convicted of criminal possession of a controlled

substance in the fourth degree under New York state law. In 2014, he was

convicted of a second controlled substance violation in New York. While he was

serving his sentence for the second conviction, Immigration and Customs

Enforcement (“ICE”) served Jaen with a Notice to Appear, charging him with

removability.

      Jaen appeared pro se in his initial appearances before the IJ, but repeatedly

raised the issue of his citizenship. The first IJ to hear Jaen’s case determined that

Jaen was not a citizen, but permitted him to pursue other relief in later

proceedings. Jaen’s case was then transferred to a different immigration court

before a different IJ, where Jaen was represented by his present counsel. On

October 18, 2016, Jaen’s counsel filed a motion to terminate removal proceedings

on the basis of Jaen’s acquired United States citizenship. The IJ orally denied the

motion during a hearing on November 23 and issued a written decision on
                                          5
December 8. The BIA affirmed that decision and order on May 2, 2017. Jaen

remained in immigration detention for the entire duration of his immigration

proceedings and subsequent appeals until our Court ordered his release on April

13, 2018.

                                   DISCUSSION

      For reasons explained below, the sole question presented in this appeal is

whether Jorge Boreland was Jaen’s “parent” for the purposes of having acquired

United States citizenship at birth under former INA § 301(a)(7), 8 U.S.C. §

1401(a)(7). We hold today that the INA incorporates the common law meaning of

“parent” into former Section 1401(a)(7), such that a child born into a lawful

marriage is the lawful child of those parents, regardless of the existence or

nonexistence of any biological link. Former Section 1401(a)(7) does not include a

requirement that an individual be a biological parent in order to be a “parent”

for purposes of transmitting citizenship to their child at birth.

   I. Standard of Review

      We are tasked with statutory interpretation, which presents a question of

law we review de novo. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)

(explaining that “a pure question of statutory construction” is “for the courts to
                                          6
decide”). Additionally, the INA specifically directs appellate courts to review

nationality claims in petitions for review of orders of removal. If there are no

genuine issues of material fact regarding the petitioner’s nationality, “the court

[of appeals] shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A). If

genuine issues of material fact remain, the court of appeals is directed to

“transfer the proceeding to the district court of the United States for the judicial

district in which the petitioner resides for a new hearing on the nationality claim

and a decision on that claim.” 8 U.S.C. § 1252(b)(5)(B). Congress has explicitly

designated an area of judicial review exclusively for Article III courts when a

petitioner argues that he is in fact a citizen of the United States who is not subject

to removal. Our review of the legal question of citizenship is therefore de novo. 2

See Gil v. Sessions, 851 F.3d 184, 186 (2d Cir. 2017).



2 Our cases have not always been so clear on the standard of review regarding
citizenship claims in the context of removal proceedings. Though most of our
decisions have embraced de novo review on the basis of the statute’s explicit
designation of courts of appeals as the forum for these nationality claims, see, e.g.,
Persaud v. Sessions, 715 F. App’x 75, 75 (2d Cir. 2018) (summary order); Dussard v.
Lynch, 627 F. App’x 18, 19 (2d Cir. 2015) (summary order); Morales-Santana v.
Lynch, 804 F.3d 520, 525 (2d Cir. 2015), aff’d in relevant part sub nom Sessions v.
Morales-Santana, 137 S.Ct. 1678 (2017), some have also discussed Chevron
deference while determining it did not apply to the facts of the given case, see,
e.g., Duarte-Ceri v. Holder, 630 F.3d 83, 88 n.2 (2d Cir. 2010), while others have
                                            7
   II. Statutory Basis of Citizenship Claim

      “There are two sources of citizenship, and two only: birth and

naturalization.” Miller v. Albright, 523 U.S. 420, 423 (1998) (internal quotation

marks omitted). Congress has provided for the transmission of citizenship from

U.S. citizen parents to their children in two categories: derivative citizenship and

acquired citizenship. Derivative citizenship is transmitted from the parent to the

child after the child is born. 8 U.S.C. § 1431. Acquired citizenship renders the

child a U.S. citizen from the moment of his or her birth. 8 U.S.C. § 1401 (defining

“[n]ationals and citizens of United States at birth”). It is this second type of

citizenship—U.S. citizenship acquired at the moment of birth—that Jaen lays

claim to in this appeal.




applied Chevron to different types of statutory citizenship claims, see, e.g.,
Nwozuzu v. Holder, 726 F.3d 323, 326-27 (2d Cir. 2013). In this case, the
government did not raise Chevron deference, but insofar as clarification would be
useful for future courts, we clarify that the statute’s designation of courts of
appeals as the fora for the adjudication of citizenship claims without any
material issues of fact under 8 U.S.C. § 1252(b)(5)(A) renders our review de novo
and without deference to the determinations of the administrative adjudicators
below.
                                           8
      “Citizenship of a person born abroad is determined by law in effect at the

time of birth.” 3 Hizam v. Kerry, 747 F.3d 102, 105 (2d Cir. 2014); see also Drozd v.

Immigration and Naturalization Service, 155 F.3d 81, 86 (2d Cir. 1998). Because Jaen

was born in May 1972, his claim to citizenship is governed by former 8 U.S.C. §

1401(a)(7), which provides:

      The following shall be nationals and citizens of the United States at birth:
      [...]
      (7) a person born outside the geographical limits of the United States and
      its outlying possessions of parents one of whom is an alien, and the other a
      citizen of the United States who, prior to the birth of such person, was
      physically present in the United States or its outlying possessions for a
      period or periods totaling not less than ten years, at least five of which
      were after attaining the age of fourteen years: Provided, That any periods of
      honorable service in the Armed Forces of the United States by such citizen
      parent may be included in computing the physical presence requirements
      of this paragraph.




3Given the difficulty in determining the exact statute in effect at any given
moment in time and given any different combination of factual scenarios, USCIS
has published charts to help petitioners identify the criteria for their particular
claim to citizenship. See, e.g., USCIS Policy Manual, Appendix: Children Born
Outside the United States in Wedlock (Nationality Chart 1),
https://www.uscis.gov/policymanual/HTML/PolicyManual-Appendix-
Nationality1.html.
                                           9
Special App’x at 11. In order to establish a claim to citizenship, Jaen must

demonstrate that he meets these conditions prescribed by the law in effect at the

time of his birth.

      The IJ declined to decide whether Jaen fulfilled the “remaining

requirements” (e.g., the physical presence requirement for Jaen’s putative U.S.

citizen parent), Special App’x at 7, but the government does not contest Jaen’s

claim that the other requirements are satisfied. Because the government does not

argue that Jaen fails to meet the other requirements, the government abandoned

its challenge to those portions of the citizenship criteria. See Zhang v. Gonzales,

426 F.3d 540, 541 n.1 (2d Cir. 2005); see also Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived

and normally will not be addressed on appeal.”). Accordingly, the sole issue on

appeal is whether Jorge Boreland is Jaen’s “parent” for purposes of the

acquisition of citizenship under former 8 U.S.C. § 1401(a)(7).

   III.   “Parent” in Former 8 U.S.C. § 1401(a)(7)

      Jorge Boreland is not the biological father of Jaen. The government argues

that this fact disqualifies him from transmitting citizenship to Jaen via former

Section 1401(a)(7) because “neither of [Jaen’s] parents at the time of his birth was
                                          10
a United States citizen.” Appellee’s Br. at 9. Jaen disagrees with this

characterization of the statute and argues that he was “born to a parent, Jorge

Boreland, who was a United States citizen at the time of Mr. Jaen’s birth.”

Appellant’s Br. at 9. Jaen’s claim to U.S. citizenship is thus dependent on the

meaning of the word “parent” in former Section 1401(a)(7).

       “When interpreting a statutory provision, we begin with the language of

the statute.” Nwozuzu, 726 F.3d at 327. The section of the statute under which

Jaen hopes to acquire citizenship speaks only of “parents” and does not further

define the term. The only other relevant section of the 1952 version of the INA

(the operative version at the time of Jaen’s birth) is the definition section, but that

section only defines “parent” for purposes of the relevant Title as including “in

the case of a posthumous child a deceased parent, father, and mother.” INA §

101(c)(2). There is no further definition of the term “parent” in the INA. 4



4The government urges us to rely on USCIS Policy Manuals and the Foreign
Affairs Manual (“FAM”) of the Department of State as alternative sources of
definitions demonstrating that a biological relationship is required for acquired
citizenship. These manuals are not entitled to Chevron deference from our Court.
Cruz-Miguel, 650 F.3d at 200 (holding that “internal guidance documents are not
binding agency authority and, thus, are generally unworthy of Chevron-style
deference). See also Christensen v. Harris County, 529 U.S. 576, 587 (2000) (holding
that interpretations in opinion letters “like interpretations contained in policy
                                           11
      But any apparent ambiguity is foreclosed by one of our most foundational

principles of statutory construction. Though the statute itself does not explicitly

define the term “parent” for purposes of this section, the term may carry with it a

more fulsome definition, because

             It is a well-established rule of construction that where Congress uses
             terms that have accumulated settled meaning under the common
             law, a court must infer, unless the statute otherwise dictates, that
             Congress means to incorporate the established meaning of these
             terms.

Neder v. United States, 527 U.S. 1, 21 (1999) (internal quotation marks omitted); see

also Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51, 56-57 (2d Cir. 2017)

(endorsing and quoting the preceding excerpt from Neder). This “settled

principle of interpretation” assumes that when

      Congress borrows terms of art in which are accumulated the legal tradition
      and meaning of centuries of practice, it presumably knows and adopts the
      cluster of ideas that were attached to each borrowed word in the body of
      learning from which it was taken and the meaning its use will convey to
      the judicial mind unless otherwise instructed.



statements, agency manuals, and enforcement guidelines, all of which lack the
force of law . . . do not warrant Chevron-style deference”). The FAM does not
even purport to interpret the statute, let alone to apply to the situation at hand
regarding a citizenship claim made by an individual inside the territorial United
States, so the government’s reliance upon the FAM language is particularly
perplexing.
                                          12
Sekhar v. United States, 570 U.S. 729, 732-33 (2013) (internal quotation marks

omitted).

         Jaen argues that “parent” in Section 1401 incorporates the common law

presumption of legitimacy—and hence, lawful parentage—when a child is born

into a marital union. This presumption is articulated in Blackstone’s

Commentaries in the Latin phrase, “Pater est quem nuptiae demonstrant.” 5 1

William Blackstone, Commentaries *434. More recently, the presumption was

articulated in the Supreme Court’s analysis of parentage and legitimacy in

Michael H. v. Gerald D., 491 U.S. 110 (1989). In that case, the Court considered “the

historic respect—indeed, sanctity would not be too strong a term—traditionally

accorded to the relationships that develop within the unitary family,” id. at 123,

in part through an analysis of centuries-old laws presuming legitimacy when a

child was born into a marital union, id. at 124-127. The Michael H. Court declared

the “presumption of legitimacy” regarding a child born into a marriage to be a

“fundamental principle of the common law” that grounded the Court’s

determination that “our traditions have protected the marital family.” Id. at 124.




5   The nuptials show who is the father.
                                           13
      Given the statute’s use of a term with centuries-old, common law meaning

and its failure to articulate any additional or alternative definition of “parent”

specific to this Section of the INA, it is clear to us that Congress incorporated the

common law meaning of “parent” into the INA. When it did so, it therefore

incorporated the longstanding presumption of parentage based on marriage.

      This interpretation is buttressed by our analysis of “the placement and

purpose of [the term] in the statutory scheme,” including an appreciation of

“how sections relate to one another.” Cruz-Miguel v. Holder, 650 F.3d 189, 195 (2d

Cir. 2011) (internal quotation marks omitted). For the purposes of this portion of

our analysis, it is most useful to compare former Section 1401(a)(7) with former 8

U.S.C. § 1409, the section addressing citizenship claims at birth by children born

out of wedlock. 6 Though former Section 1401 speaks only of “parents” with no

further requirements or definitions, former Section 1409 treated the citizenship

claims of children born out of wedlock differently depending on whether the




6Jaen observes that current 8 U.S.C. § 1409 requires evidence of a “blood
relationship” by “clear and convincing evidence,” but that language was added
in later iterations of the INA and was not in effect at the time of Jaen’s birth.
Appellant’s Br. at 17.
                                        14
U.S. citizen parent was the mother or father. 7 In the case of an unwed U.S. citizen

father, the statute does not use the word “parent” and explicitly requires that

“the paternity of such child is established while such child is under the age of

twenty-one years by legitimation.” Immigration and Nationality Act, 82 P.L. 414,

§ 309(a), 66 Stat. 163, 238 (1952). In other words, the father of a child born out of

wedlock was required to establish his parentage through legitimation in order

for citizenship to be transmitted. There is no comparable additional requirement

for the establishment of paternity in the section regarding citizenship via married

parents. Consistent with the common law presumption, paternity is simply

assumed in the case of married parents.

       “Where 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.” Russello v. United States, 464 U.S. 16, 23 (1983) (brackets omitted).



7That distinction persisted in the present version of the law, until the Supreme
Court held in Sessions v. Morales-Santana that the gender-based distinctions in
residency requirements violated the Equal Protection Clause. The Court held that
unwed citizen mothers and fathers must be held to the same residency
requirements in order to transmit citizenship to their children. 137 S.Ct. 1678
(2017).
                                        15
Congress clearly specified enhanced requirements for proof of parentage in the

case of children born out of wedlock. “Congress’ omission of similar language”

regarding married parents suggests that if Congress wanted to require proof of

biological relationship, “it knew how to do so.” Custis v. United States, 511 U.S.

485, 492 (1994). In short, the “textual distinction” between the sections regarding

children of married parents and children of unmarried parents is strongly

suggestive of a clear Congressional intent to treat the two categories differently

on this point. See Cruz-Miguel, 650 F.3d at 196. This interpretation is consonant

with our assessment that the INA incorporates the common law meaning of

“parent” into Section 1401. Accordingly, we hold that a “parent” in Section 1401

incorporates the common law deference to the marital family and that Jorge

Boreland was Jaen’s “parent.”

      Having ruled thus, we need not consider Jaen’s alternative argument that

Jorge Boreland was his “parent” under New York State law. 8 Yet were we to do




8 We have occasionally looked to state law for definitions of domestic relations
terms in the INA. See, e.g., Ngyuen v. Holder, 743 F.3d 311, 314 (2d Cir. 2014)
(looking to New York state law for a definition of incest), and legal custody,
Garcia v. ICE, 669 F.3d 91, 95 (2d Cir. 2011) (looking to New York state law for a
definition of legal custody). We do not seek out state law in this case, because we
                                          16
so, the result would be the same, for New York state—like many states—

incorporates the common law presumption of parentage into its domestic

relations law. 9 New York state law expressly provides that a child “born of

parents who prior or subsequent to the birth of such child shall have entered into

a civil or religious marriage . . . in the manner authorized by the law of the place

where such marriage takes place, is the legitimate child of both birth parents.”

N.Y. Dom. Rel. Law 24(1) (McKinney 2008). New York courts have declared the

presumption of legitimacy to be “one of the strongest and most persuasive

known to the law,” In re Findlay, 253 N.Y. 1, 7 (1930), and explained that the

presumption will prevail “unless common sense and reason are outraged by a

holding that it abides,” id. at 8. Because “New York has a strong policy in favor

of legitimacy,” it is presumed “that a child born to a marriage is the legitimate

child of both parents.” Laura WW. V. Peter WW., 856 N.Y.S.2d 258, 262 (3d Dep’t

2008) (internal quotation marks omitted). Indeed, the government does not argue




hold that the statutory language incorporates the common law definition of
“parent.”
9
  On this question, our analysis is aided by a thorough amicus brief from family
law professors with expertise in this area.
                                          17
to the contrary in its brief and conceded at oral argument that Boreland would be

Jaen’s parent under New York law. 10

      Though this is a question of first impression in our Circuit, we are not

alone in reaching the conclusion that a blood relationship is not required to

establish parentage for purposes of acquired citizenship when the child is born

into marriage. See Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000) (holding that,

because petitioner was born in wedlock, he acquired citizenship from his U.S.

citizen father although there was likely no biological link between them). And

our determination that a child born into a marriage is the child of that marriage

is grounded in the common law and Supreme Court precedent, and reflected in

New York state law. In Michael H. v. Gerald D., the Supreme Court refused to

“award substantive parental rights to the natural father of a child conceived

within, and born into, an extant marital union that wishes to embrace the child”

despite a blood test establishing another man as the father of the child. 491 U.S.

110, 127 (1989). “Illegitimacy,” that Court observed, “is a legal construct, not a



10Though we need only hold on the common law interpretation for the matter to
be settled, New York’s incorporation of the common law understanding of
parentage makes our analysis between the two areas relatively fluid.

                                         18
natural trait.” Id. at 131. Similarly, parentage for purposes of Section 1401 is a

legal construct that incorporates the common law’s enduring respect for the

marital family. Accordingly, we break no new ground in finding that Jorge

Boreland was Jaen’s “parent” under former 8 U.S.C. § 1401(a)(7).

                                  CONCLUSION

      We hold that Jorge Boreland, a U.S. citizen, was the parent of Levy Alberto

Jaen, who acquired United States citizenship from his father at birth. The

principle guiding this decision—that a child born into a legal marriage is

presumed to be the child of the marriage—is a lasting one, with deep roots in the

common law. In each iteration, this presumption has reflected the traditional

“aversion to declaring children illegitimate,” as well as an interest in promoting

familial tranquillity through deference to the marital family. Id. at 124-25.

             The petition for review is GRANTED and all removal proceedings

against Jaen are TERMINATED.




                                          19
POOLER, Circuit Judge:

      I write separately to observe that though this decision rests upon

perennial principles—in other words, no grand innovation of law undergirds

our decision today—the government sought a summary affirmance of the IJ’s

erroneous decision below and chose to detain Jaen for the entirety of this

appellate process.1 I am troubled by these choices, particularly given the legal

question at issue—Is Jaen a U.S. citizen?—whose affirmative answer has

resulted in the United States government holding a United States citizen in

immigration detention for nearly two years.2




1 The Certified Administrative Record (“CAR”) reflects the attempt of Jaen’s
counsel to secure his release through a bond hearing premised on our now-
abrogated decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). There is no
record of the actual Lora bond hearing in the CAR, but it is clear that the IJ
denied the request for bond since Jaen was still detained at the time of our
order releasing him. The CAR also contains an extensive request to ICE to
“exercise reasonable discretion” and release Jaen pending appellate review
given his “colorable and developing claim” to U.S. citizenship. CAR at 417.
This request appears to have also been denied.
2 Unfortunately, Jaen’s case does not seem to be entirely aberrational. See, e.g.,

Paige St. John and Joel Rubin, ICE held an American man in custody for 1, 273
days. He’s not the only one who had to prove his citizenship, L.A. Times, Apr. 27,
2018 (reporting that “[s]ince 2012, ICE has released from its custody more
than 1,480 people after investigating their citizenship claims”).

                                        20
