MONSSEF CHENEAU, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 15-70636
United States Court of Appeals for the Ninth Circuit
August 19, 2020
Agency No. A077-279-939
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted July 6, 2020 Portland, Oregon
Filed August 19, 2020
Before: Mark J. Bennett and Eric D. Miller, Circuit Judges, and Benita Y. Pearson,* District Judge.
Per Curiam Opinion; Concurrence by Judge Bennett
SUMMARY**
Immigration
Denying in part and granting in part
As an initial matter, the panel considered which version of the derivative citizenship statute applied: former
Under
Under
The panel agreed with the government that the Supreme Court‘s intervening decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), negated the aggravated felony crime of violence ground for Cheneau‘s removal based on his
Concurring, Judge Bennett, joined by Judge Miller and District Judge Pearson, agreed that Romero-Ruiz foreclosed Cheneau‘s derivative citizenship claim, but wrote separately because he believes that Romero-Ruiz was phrased too broadly and established a rule that, although understandable in the circumstances presented in that case, leads to an incorrect result when applied in this case.
COUNSEL
Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.
Craig A. Newell, Jr. (argued), Trial Attorney; Emily Anne Radford, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
PER CURIAM:
Monssef Cheneau petitions for review of the Board of Immigration Appeals’ (“BIA“) determinations that he does not qualify for derivative citizenship and that his burglary conviction renders him removable. We conclude that Cheneau is not a derivative citizen of the United States. The Immigration Judge (“IJ“) and the BIA found that Cheneau was removable because his California burglary conviction was a crime-of-violence aggravated felony. While this appeal was pending, the Supreme Court held that the “crime of violence” statute, as incorporated into the Immigration and Nationality Act‘s (“INA“) definition of aggravated felony, is unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). Therefore, Cheneau‘s burglary conviction can no longer support removal as a crime-of-violence aggravated felony. We remand to the BIA to determine whether Cheneau is removable on another ground, including based on his California conviction for receipt of stolen property.
I.
Cheneau was born in December 1984 and is a native of Morocco and a citizen of France. His parents divorced in 1990, and his mother obtained full custody of him. When Cheneau was thirteen, he lawfully entered the United States on a non-immigrant student visa. In July 1999, Cheneau‘s mother was naturalized as a United States citizen.
In January 2000, when Cheneau was fifteen, his mother filed an I-130 Petition for Alien Relative on his behalf, and Cheneau simultaneously applied for adjustment to lawful permanent resident status based on his mother‘s pending petition. The Immigration and Naturalization Service (“INS“) scheduled Cheneau for an adjustment of status interview but mistakenly mailed the notice of the interview to Cheneau‘s old address. Cheneau and his mother never received the notice. As a
In January 2003, Cheneau‘s mother filed a pro se motion to reopen, writing: “We never received a notice for his interview. We moved from the previous address . . . . We sent our notice for address change[] and we sent a lot of inquiry forms for this file. Unfortunately we never received an answer. We just [found] out about the problem.” The INS granted the request for reopening and adjusted Cheneau‘s status to lawful permanent resident in August 2003, when Cheneau was eighteen.
In 2006, Cheneau was convicted of three offenses: (i) burglary in violation of
Before the IJ, Cheneau argued that his removal proceedings should be terminated because he was a citizen of the United States, having derived citizenship from his mother‘s naturalization. The IJ rejected Cheneau‘s derivative citizenship claim on the basis that “he did not attain lawful permanent residence in this country prior to the age of 18.” The IJ also determined that two of Cheneau‘s convictions were for deportable aggravated felonies: burglary, a crime of violence, and receipt of stolen property, a theft offense. See
The BIA affirmed. The BIA first held that under former
On remand, the BIA again determined that Cheneau‘s burglary conviction was a crime of violence, finding that the Supreme Court‘s decision in Descamps v. United States, 570 U.S. 254 (2013), did not change the analysis. The BIA also determined that the applicable derivative citizenship statutory provision was
citizen under
II.
We have jurisdiction to determine Cheneau‘s claim that he is a derivative
The INA confers automatic “derivative citizenship on the children of a naturalized citizen, provided certain statutorily prescribed conditions are met.” Id. at 1075. Cheneau claims that he derived citizenship from his mother‘s naturalization. This claim is foreclosed by our decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008).
We must first decide which version of the statute governs. The applicable version is the one that was “in effect at [the] time the critical events giving rise to eligibility occurred.” Minasyan, 401 F.3d at 1075. Former
not become a citizen before that date, then the successor (and current) statute,
Cheneau urges the application of
(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
. . .
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . ., or thereafter begins to reside permanently in the United States while under the age of eighteen years.
We conclude that
until August 2003, at age eighteen, about four years after his mother was naturalized and when
Cheneau does not dispute this but argues instead that he became a derivative citizen under the second provision of
We are foreclosed from following Nwozuzu.4 In Romero-Ruiz, we considered a petitioner‘s derivative citizenship claim under
We are bound by Romero-Ruiz, under which “lawful admission for permanent residence” is required by both provisions of clause (5). See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (instructing that absent superseding Supreme Court authority, “a three-judge panel may not overrule a prior decision of the court“); Tippett v. Coleman (In re Tippett), 542 F.3d 684, 691 (9th Cir. 2008) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, . . . that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” (citation omitted)).
We acknowledge that certain language in Romero-Ruiz can be read as indicating that the second provision requires “some lawful status” but not necessarily lawful permanent
resident status. But we think this view requires a strained reading of Romero-Ruiz, especially considering the first sentence of the opinion: “This petition for review presents the question of whether an immigrant who did not have lawful permanent resident status at the time of his mother‘s naturalization is eligible for derivative citizenship. We conclude that he is not, and deny the petition.” 538 F.3d at 1060; see also id. at 1062. In addition, Romero-Ruiz‘s surplusage analysis makes sense only if “reside permanently” requires lawful permanent resident status: “To 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—
Under Romero-Ruiz, the critical event of Cheneau obtaining lawful permanent resident status happened in 2003, more than two years after
We apply instead
A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
Cheneau concedes that he never resided in the United States pursuant to a lawful admission for permanent residence while he was under the age of eighteen. Therefore, Cheneau did not become a citizen of the United States pursuant to
III.
As Cheneau is not a citizen of the United States, he is subject to removal proceedings. The BIA found that Cheneau was removable because his burglary conviction was a crime-of-violence aggravated felony. The government concedes on appeal that the Supreme Court‘s intervening decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), “negates this ground for Cheneau‘s removal.” We agree. Although Cheneau‘s conviction for receipt of stolen property appears to be a categorical aggravated felony under United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), the BIA did not determine this question and the government seeks a remand on this issue. We accordingly remand to the BIA to consider whether any of Cheneau‘s criminal convictions render him removable.
Petition DENIED in part and GRANTED in part; REMANDED.
The parties are to bear their own costs.
BENNETT, Circuit Judge, with whom Judge Miller and Judge Pearson join, concurring:
Our decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), forecloses Cheneau‘s derivative citizenship claim, so I concur in our per curiam opinion. I write separately because I believe that Romero-Ruiz was phrased too broadly and established a rule that, although understandable in the circumstances presented in that case, leads to an incorrect result when applied here.1
Cheneau‘s derivative citizenship claim turns on the interpretation of a now-repealed section of the Immigration Nationality Act (“INA“)—
citizen in January 2000 when he applied for adjustment to lawful permanent resident status.
Clause (5) of
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 [provision one] . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years [provision two].
Cheneau has been residing in the United States since he lawfully entered at age thirteen. When he was fourteen, Cheneau‘s mother, who had full legal custody of him, became a naturalized citizen. When he was fifteen, Cheneau applied for adjustment of status to lawful permanent resident. But due to a mistake by the Immigration and Naturalization Service (“INS“), Cheneau did not obtain lawful permanent resident status until more than three years later—after he had turned eighteen.
Cheneau does not qualify for derivative citizenship under the first provision of clause (5): he was not lawfully
admitted for permanent residence at the time of his mother‘s naturalization. Cheneau contends that he is a derivative citizen under the second provision because he began to “reside permanently” in the United States after his mother‘s naturalization and before he turned eighteen. Cheneau acknowledges that he did not obtain lawful permanent resident status until after he turned eighteen, but argues that the second provision‘s “begins to reside permanently” does not require lawful admission for permanent residence.3 Rather, it requires only actual residence and an “objective intent” to reside permanently—which he satisfied in January 2000, at age fifteen, when he applied for adjustment to lawful permanent resident status while residing in the United States.4 As the opinion states, this argument is foreclosed by Romero-Ruiz.
A circuit split exists on the interpretation of the second provision‘s “or thereafter begins to reside permanently in the United States.”
permanently’ alters only the timing of the residence requirement, not the requirement of legal residence.” Id. Romero-Ruiz thus adopted the “shorthand interpretation” of clause (5)—the view that “reside permanently” is a shorthand reference to “resid[e] . . . pursuant to a lawful admission for permanent residence.” The Eleventh Circuit agreed with Romero-Ruiz‘s interpretation in United States v. Forey-Quintero, 626 F.3d 1323, 1324 (11th Cir. 2010), holding that “the phrase ‘begins to reside permanently in the United States while under the age of eighteen years’ contained in
The Second Circuit reached the opposite conclusion: “‘[B]egins to reside permanently’ does not require ‘lawful permanent resident’ status.” Nwozuzu v. Holder, 726 F.3d 323, 333 (2d Cir. 2013) (alterations in original). Instead, “begins to reside permanently” requires “some objective official manifestation of the child‘s permanent residence.” Id. (citation omitted). In the Second Circuit, an “application of adjustment to lawful permanent resident status . . . is an objective and official manifestation of [a petitioner‘s] intent to reside permanently in the United States.”5 Id. at 334.
In my view, we are on the wrong side of the circuit split. Normal rules of statutory construction counsel that different terms in the same section mean different things. Both the statutory text and history of amendments to the statute show that “residing in the United States pursuant to a lawful
admission for permanent residence” and “begins to reside permanently in the United States” do mean different things, and were so intended by Congress.
I. The Text
Clause (5)‘s two provisions use different language, and the “usual rule [is] 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) (citation omitted). This rule is especially applicable where, as here, the same Congress chose to use different language in the same section of the same statute. See Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2071–72 (2018) (“We usually ‘presume differences in language . . . convey differences in meaning.’ And that presumption must bear particular strength when the same Congress passed both statutes to handle much the same task.” (citation omitted)); Lopez v. Sessions, 901 F.3d 1071, 1077–78 (9th Cir. 2018). But even beyond application of the rule, an examination of the statutory text reveals material distinctions between the differently worded phrases.
In the first provision, “lawful admission for permanent residence” is a “term of art.” Gooch v. Clark, 433 F.2d 74, 78 (9th Cir. 1970). The INA defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”
added). The INA‘s definition of “lawfully admitted for permanent residence” includes as a component part the words “residing permanently“—which is, of course, a variant of the second provision‘s “reside permanently.” See Thomas v. Lynch, 828 F.3d 11, 15 (1st Cir. 2016).
The INA does not define “reside permanently,” but it separately defines “residence” and “permanent.” The word “residence” means “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”
The two provisions require different things for derivative citizenship. The first provision imposes a status requirement of “lawful admission for permanent residence.” See
began after the parent‘s naturalization and while the petitioner was under age eighteen.
On the face of the statute, only the first provision of clause (5) contains a status requirement. Romero-Ruiz, however, imposes the first provision‘s status requirement onto the second provision. The distinction between status and actual residence is significant. An individual can be “lawfully admitted for permanent residence” without actually residing in the United States. Gooch, 433 F.2d at 76 (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 converse is also true: an individual can lawfully and permanently reside in the United States without having the status of “lawful permanent resident.” See Nwozuzu, 726 F.3d at 333 (“[T]here are a number of groups that are permitted to stay in this country permanently without being lawful permanent residents . . . .“); Elkins v. Moreno, 435 U.S. 647, 666 (1978).
If Romero-Ruiz is correct that “lawful admission for permanent residence” and “reside permanently” have identical meanings, then there would be no need for two provisions and the second provision would be surplusage. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a 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.” (internal citations and quotation marks omitted)). Romero-Ruiz states that “[t]he phrase ‘or thereafter begins to reside permanently’ alters only the timing of the residence requirement . . . .” 538 F.3d at 1062. In other words, the first provision
his parent naturalized, while the second provision grants the child derivative citizenship if he becomes a lawful permanent resident after his parent‘s naturalization. If that were the case, it is 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.”6
Romero-Ruiz relies on a different surplusage argument, explaining that “[t]o interpret the second [provision] 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 [provision]—requiring legal permanent residence—superfluous.” 538 F.3d at 1062. The government advances a similar argument that if the second provision requires a “lesser form of residence” and provides an easier pathway to derivative citizenship, then there would be no need for the first provision. In my view, Romero-Ruiz and the government incorrectly read the second provision. The first provision provides a pathway for children who had already obtained lawful permanent resident status and who were actually residing in the United States—this combination being the “greater” form of residency—to get the benefit of automatic citizenship as soon as their parent is naturalized. The second provision provides a pathway for children without lawful permanent resident status, and who therefore have to “begin[] to reside permanently in the United States” after their parent‘s naturalization. See Thomas, 828 F.3d at 17
(noting that the word “begins” requires that the child “experienced any relevant change in status or took any relevant action” after his parent‘s naturalization).7 The second provision, even without a status requirement, does not necessarily swallow the first. The first provision‘s actual residence requirement is merely “residing” in the United States at the time of the naturalization.
Other sections of the INA also recognize a distinction between the two terms, including former
Importantly, former
If Congress intended to limit derivative citizenship to lawful permanent residents, it could have expressly done so. It did just that in the current version of the derivative citizenship statute, which modified
II. The History
The history of amendments to the statutory text, which Romero-Ruiz does not discuss, also supports interpreting the two provisions differently.10 The term “reside permanently” has been used in the derivative citizenship statute since 1907, while the term “lawful admission for permanent residence” is a term of art first introduced and defined in 1952. See Citizenship Act of 1907, ch. 2534 § 5, 34 Stat. 1228, 1229 (repealed 1940); Nwozuzu, 726 F.3d at 330–31. In 1940, Congress enacted a predecessor version of
for a child who was “residing in the United States at the time of the naturalization of the parent last naturalized . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years.” Nwozuzu, 726 F.3d at 331 (quoting Nationality Act of 1940, ch. 876 § 314, 54 Stat. 1137, 1145–46 (repealed 1952)). The 1940 version‘s second provision is identical to the second provision of
The Immigration and Nationality Act of 1952 (the “Act” or “1952 Act“) defined “lawfully admitted for permanent residence” as a new term of art. Nwozuzu, 726 F.3d at 331. The House Report accompanying the 1952 Act explained that the term, as defined by the Act, carries “especial significance because of its application to numerous provisions of the bill.” H.R. Rep. No. 82–1365 (1952). The 1952 Act also modified the derivative citizenship statute by adding “pursuant to lawful admission for permanent residence” for the first time. INA § 321(a)(5), ch. 477, 66 Stat. 163, 245 (1952). Notably, Congress preserved the two pathways and added the new term of art only to the first.
added “lawful admission for permanent residence” for the first time in 1952, and added it only to the first provision, I agree with the Second Circuit‘s conclusion that Congress did not intend the phrase “‘reside permanently‘—which had been carried over, unaltered, from previous statutes since 1907—to be shorthand for the new term of art.” Nwozuzu, 726 F.3d at 331. Indeed, I would go further—I think it almost inconceivable that if Congress intended such a radical change, it would have done so in such an inscrutable manner.
The government cites a 1950 Senate Report—stating that “lawful permanent residence has always been a prerequisite to derivative citizenship“—to rebut the Second Circuit‘s analysis. The government suggests that Nwozuzu ignored that “lawful admission for permanent residence,” even though it was first introduced in 1952, has always been a requirement that was unchanged by the 1952 Act. But the government quotes the report out of context. The 1950 Senate Report states the following:
Lawful permanent residence has always been a prerequisite to derivative citizenship. There must be a bona fide intent to reside permanently in the United States. Thus, the child does not derive citizenship if he goes abroad before the naturalization of his parents, and intends to abandon and does abandon his residence in the United States. However, if there is a fixed intention to return, it has been held that an absence of as long as 14 years will not prevent naturalization shortly after the child‘s departure provided the father‘s domicile has continued.
S. Rep. No. 81-1515, at 707 (1950) (emphasis added). The words “lawful permanent residence” used in the 1950 Senate Report
III. Conclusion
I believe that if Congress intended the two provisions of