MONSSEF CHENEAU, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 15-70636
United States Court of Appeals for the Ninth Circuit
Filed May 13, 2021
Submitted En Banc March 22, 2021*
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONSSEF CHENEAU,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-70636
Agency No.
A077-279-939
OPINION
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
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
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
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.
CHENEAU V. GARLAND
United States Court of Appeals for the Ninth Circuit
6 CHENEAU V. GARLAND
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
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
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
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
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
(Bennett, J., concurring). The concurrence urged
reexamination because Romero-Ruiz “was phrased too
derivative citizenship provision, codified at
addressed the applicability of
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
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
is therefore not applicable.” Id. at 970 (applying
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
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.”
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
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,
traditional aids of statutory interpretation” in order to
Romero-Ruiz, and held that lawful permanent residency was required for
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
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.”
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
“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.”
general abode; the place of general abode of a person means
his principal, actual dwelling place in fact, without regard to
intent.”
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
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
as separate requirements, rather than one as a shorthand for
the other. See
residing permanently in the United States with the citizen
parent, pursuant to a lawful admission for permanent
residence . . . .”);
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
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
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).
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
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
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.,
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.”
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
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
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
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
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, 726 F.3d at 333 (citation omitted), 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.” 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 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
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
naturalizes, he “begins to reside permanently in the United States while under the age of eighteen years.”
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.
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
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
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.
In the majority’s view, it is sufficient for purposes of the second clause that Cheneau “demonstrated an objective
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
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
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).
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
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.
The relevant history begins in the early part of the twentieth century. Although
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
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
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
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.
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
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
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
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.”
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
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
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) (
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
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.
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
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.
I therefore do not think that treating
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
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
permanently in the United States while under the age of eighteen years.
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
residence—superfluous.” Id. That reasoning was right on the mark.
Section
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
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
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
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,
The upshot is that even if the majority has shown there is
some potential scenario in which its reading of
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
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
Take for instance
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
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,
Section
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
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,
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 F.3d 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
50 CHENEAU V. GARLAND
It is hard to
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?
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
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.,
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
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.