Sheldon Turner v. U.S. Attorney GeneralSheldon Turner v. U.S. Attorney General
This case of first impression requires us to decide a statutory question of derivative citizenship under former section 321(a) of the Immigration and Nationality Act (INA).
Sheldon Turner petitions for review of an order by the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) order of removal. The BIA determined that Turner did not derive citizenship from his mother’s naturalization. It reasoned that the single parent derivative citizenship subsection on which Turner relied, former
I.
Turner was born in Jamaica in 1981 to Desmond and Roslyn Turner, both Jamaican citizens. Desmond and Roslyn were married at the time of Turner’s birth.1 In 1987, Desmond and Roslyn divorced. About six months after the divorce, Roslyn married a U.S. citizen in Florida named M.C. Anderson. Two years later, in 1990, and at the age of eight, Turner was admitted to the United States as a lawful permanent resident.
Turner’s mother, Roslyn, remained married to M.C. Anderson until their divorce in 1993. Roughly a year later in 1994, Roslyn remarried Desmond, Turner’s father and Roslyn’s former husband. Turner was twelve when his parents remarried.2
In 2016, Turner was convicted in the United States District Court for the Southern District of Florida for possession with intent to distribute 500 grams or more of cocaine. That felony conviction—classified without dispute as an aggravated felony under
In August 2020, Turner moved to terminate removal proceedings. Turner argued that he derived U.S. citizenship based on his mother’s naturalization in 1999, citing the conditions for automatic citizenship in former
Turner appealed unsuccessfully to the BIA, which dismissed his appeal via an unpublished written decision in March 2022. The BIA began its inquiry with the text of the contested phrase: “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.”
Turner timely filed the instant petition for review. This decision follows.
II.
The BIA issued its own opinion in this case without expressly adopting the IJ’s decision, but the BIA relied in part on the IJ’s decision. In this circumstance, we “review the IJ’s opinion, to the extent that the BIA found that the IJ’s reasons were supported by the record, and we review the BIA’s decision, with regard to those matters on which it rendered its own opinion and reasoning.” Seck v. U.S. Atty. Gen., 663 F.3d 1356, 1364 (11th Cir. 2011) (internal quotation marks omitted).
We review questions of statutory interpretation de novo. Edwards v. U.S. Att’y Gen., 97 F.4th 725, 734 (11th Cir. 2024).
A.
We “begin[] where all such inquiries begin: with the language of the statute itself.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). This requires us to interpret statutory language according to its plain meaning as understood within its statutory context. See, e.g., Sw. Airlines Co. v. Saxon, 596 U.S. 450, 455 (2022); Johnson v. United States, 559 U.S. 133, 139 (2010) (“Ultimately, context determines meaning . . . .”); King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context” (internal citation omitted)).
All parties agree that the relevant statute governing Turner’s removal challenge is
That section, entitled “Child born outside of United States of alien parents; conditions for automatic citizenship,” provided as follows:
(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:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.
As the structure of former section 1432(a) indicates, the statute sets up three first-order categories with built-in conditions under which a child born outside the United States may derive automatic citizenship. Subsection (a)(1) covers the circumstance in which both parents naturalize and requires both parents’ naturalization.
This leaves for resolution the narrow issue of statutory interpretation presented by Turner’s petition. All other necessary conditions being satisfied, does a child derive citizenship from a naturalizing parent through the single-parent subsection, former
Agreeing with the IJ, the BIA answered that query in the negative. The BIA acknowledged that the statute’s use of the present-perfect tense provided some textual grounding for Turner’s linguistically possible reading. Ultimately, however, the BIA rejected Turner’s interpretation, noting that the structure of the statute as a whole “assumes that the legal separation of the parents is
Exercising our independent review of this statutory question, we agree with the BIA’s interpretation of former
We start with the text of the subsection itself. After referring to two prior scenarios of naturalization in subsections (a)(1) (two-parent naturalization) and (a)(2) (single-parent naturalization with
Turner focuses almost exclusively on the use of “has been” in the present-perfect tense, arguing that it must be read to encompass the fact of a prior legal separation even if the separation does not continue to the last material condition (here, naturalization). This reading, Turner contends, is compelled by the present-perfect “has been” phraseology. He also asserts that nothing in the text of the statute supports a requirement of a continuing legal separation.
Congress’ choice of verb tense can be significant in discerning a statute’s meaning. See Carr v. United States, 560 U.S. 438, 448 (2010). In the case of the present-perfect tense, dictionaries and language manuals begin by describing the tense as referencing an act or a state that is “completed at the present time” or “at the time of speaking.” See Present perfect, Webster’s Third New International Dictionary (2002) (“of, relating to, or constituting a verb tense that is traditionally formed in English with have and that expresses action or state completed at the time of speaking”); Present perfect, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) (“of, relating to, or constituting a verb tense that is formed in English with have and that expresses action or state completed at the time of speaking”); Present perfect, Oxford English Dictionary (2007) (“A tense denoting action that is completed at the present time. . . .”), https://perma.cc/EH6T-CMV5; id. (“They sometimes express it
Those sources then distinguish present-perfect from the past tense, explaining that the present-perfect usage can “refer[] to (1) a time in the indefinite past or (2) a past action that comes up to and touches the present.” The Chicago Manual of Style 268 (17th ed. 2017). In other words, “sometimes [the present perfect tense] represents an action as having been completed at some indefinite time in the past . . . [b]ut sometimes, too, the present perfect indicates that an action continues to the present . . . .” Bryan Garner, Garner’s Modern American Usage 802–03 (3d ed. 2009); id. (noting that “[e]ither of two qualities must be present for this tense [present perfect] to be appropriate: Indefiniteness of past time or a continuation to the present”).
Accepting that the use of the present-perfect tense can, as a matter of pure semantics, refer to a time in the indefinite past or to a past action or state that continues into the present, see Paresky v. United States, 995 F.3d 1281, 1288 (11th Cir. 2021), the question becomes which of those meanings applies in this statutory context,
First, the complete structure of former section 1432(a) reveals that it treats naturalization as the principal event. Starting from the top, “[a] child born outside the United States of alien parents . . . becomes a citizen . . . upon fulfillment of the following conditions.”
In this manner, former section 1432 ensures that a child does not become vested with derivative citizenship unless all of the requisite “status markers” are fulfilled at the time the last material condition is met. Importantly, this does not mean that the events that bring about the requisite conditions must all occur simultaneously. But it does require that the conditions relevant to single-parent derivative citizenship—i.e., naturalization of the single parent, custody by the single parent of the minor child, legal separation between the child’s living parents, lawful permanent residence for the child, and the child’s minor age—all be in effect at the time the last condition is met, which in the case of Turner is naturalization of his mother. It would be odd for Congress, having zeroed in so clearly on naturalization as the statutory fulcrum, to break from that approach in subsection (a)(3) by splitting naturalization temporally from the state of legal separation. Instead, the more natural construction is that “legal separation” as used in that manner contemplates a continuing status that must touch the point of naturalization.
Second, Congress’ use of the present-perfect tense to refer to legal separation naturally aligns with the statute’s focus on the conditions in existence at the time of naturalization. Recall that the particular language in the contested subsection states: “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.”
Third, Turner’s reading of subsection (a)(3) creates unnecessary and unexplained tension with subsection (a)(1). Subsection (a)(1) applies, as noted, when both parents naturalize, as compared to the single-parent scenario reflected in subsection (a)(3). If Turner’s parents were married at the time of naturalization—a fact unchallenged for purposes of this appeal—then the clearly applicable provision between the options of (a)(1), (a)(2), and (a)(3) would be subsection (a)(1), not (a)(3). 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 quotation marks omitted). We are reluctant to adopt an interpretation that weakens the force of a neighboring subsection, namely, subsection (a)(1).
Fourth, if an action is “wholly in the past—and the time is relatively definite—the simple past is called for.” Bryan Garner, Garner’s Modern American Usage 802–03 (3d ed. 2009). So too here. Had Congress been comfortable vesting derivative citizenship
Finally, although we have not previously addressed the narrow question presented in this petition, the BIA’s interpretation accords with our decision in Levy v. U.S. Att’y Gen., 882 F.3d 1364 (11th Cir. 2018), and with other circuits’ understanding of the legal-separation requirement in former section 1432(a)(3).
In Levy, we addressed a gender-and-legitimacy based constitutional challenge to former section 1432. Id. at 1367. In rejecting the challenger’s misreading of the statute, we had occasion to describe its requirements. In doing so, we identified the three naturalization-specific subsections,
To be sure, Levy did not present the precise issue of statutory interpretation we confront here. But nothing in Turner’s arguments or in the text of the statute leads us to question our prior breakdown of the marriage-separation distinction as one implicitly requiring a continuing legal separation touching into the moment of naturalization.
Levy is also instructive in its explanation of the textually drawn rationale underlying the single-parent subsections in (a)(2) and (a)(3). As we stated in Levy, “[b]ecause derivative
Other circuits have also treated the legal-separation requirement as a condition that must be in place by the time of naturalization.
In Joseph v. Holder, 720 F.3d 228 (5th Cir. 2013), the Fifth Circuit rejected a claim of derivative citizenship under former section 1432(a)(3) because the petitioner’s parents—as determined by a vacated divorce order in state court—were not legally separated when the petitioner’s mother naturalized. Id. at 230–31.
Similarly, in Jaffal v. Dir. Newark New Jersey Field Off. Immigr. & Customs Enf’t, 23 F.4th 275 (3d Cir. 2022), the Third Circuit reversed a grant of summary judgment on the issue of separation,
Finally, the Ninth Circuit in Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005)—again in the context of former section 1432(a)—observed without difficulty that a child seeking derivative citizenship under that provision must prove that his parents were legally separated “at the time of his mother’s naturalization.” Id. at 1076.
Turner has not offered any decision that has adopted his particular understanding of subsection (a)(3) or suggested that legal separation under that provision need not exist at the time of naturalization.8
The dissent reaches a different conclusion, determining that the requirements of the single-parent derivative citizenship pathway can be satisfied by a child whose naturalizing parent is legally married to the child‘s other parent at the time of naturalization. Dissent Op. at 6–9. Respectfully, we disagree with this anomalous interpretation, which is not meaningfully rooted in the text of the statute but relies instead on two prior decisions of the BIA, neither
Under Skidmore, a court can look to an agency‘s interpretation for guidance depending upon the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Supreme Court‘s recent decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), overruling Chevron deference did not disturb Skidmore, although it clarified the areas in which Skidmore has tended to serve an interpretive function. Where “a particular statute empower[s] an agency to decide how a broad statutory term applie[s] to specific facts found by the agency,” there exists a discernable basis to seek guidance from the agency given such interpretive authority. Loper Bright Enter., 144 S. Ct. at 2259 (citing Gray v. Powell, 314 U.S. 402 (1941) and NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944); id. at 2263 (noting statutes with express delegations of interpretative authority). Similarly, resort to Skidmore may be warranted where an agency makes a “factbound determination” about the meaning of a statutory term, id. at 2259; where Congress gives an agency the power to “‘fill up the details’ of a statutory scheme,” id. at 2263 (quoting Wayman v. Southard, 10 Wheat. 1, 43 (1825)); where an agency‘s “specialized experience” and “informed judgment” work to lend persuasive power to its interpretations, Skidmore, 323 U.S. at 139–40; or where the term itself leaves the agency “‘with
We fail to see a basis to engage in Skidmore review to resolve Turner‘s appeal. Turner‘s appeal does not rest on an agency‘s factbound determination about a statutory term. It does not implicate the BIA‘s “specialized experience.” Skidmore, 323 U.S. at 139. And Turner himself does not advocate for Skidmore review. This is unsurprising, as the matter before us presents a pure, narrow question of law prime for judicial resolution using interpretive tools to resolve ambiguity. Loper Bright Enter., 144 S. Ct. at 2266.
In any case, even assuming Skidmore guidance could play some role in Turner‘s appeal, there is no interpretation of the BIA, longstanding or otherwise, that actually governs the disputed statutory question at issue. As the BIA explained, this case concerns whether the statutory phrase “has been a legal separation of the parents” in former section 321(a)(3) is met by a legal separation at a singular point in time in the past or whether it imposes a continuing requirement that must still exist at the time that all other conditions of derivative citizenship are satisfied. On that question of law, the BIA has never spoken—until it decided Turner‘s appeal.
Nor did the BIA resolve the instant statutory issue in Matter of Baires-Larios, 24 I. & N. Dec. 467 (BIA 2008), or Matter of Douglas, 26 I. & N. Dec. 197 (BIA 2013)—the two BIA decisions on which the dissent relies for persuasive weight. In Baires-Larios, the BIA addressed the following sequence of events: a child‘s foreign-born parents divorced; the child‘s father became a naturalized United States citizen; the child‘s mother relinquished legal custody of the child; and the child (still under the age of eighteen) entered the United States and acquired permanent residency. With that set of facts, the BIA found derivative citizenship because all of the ingredients of derivative citizenship were in effect when the last material condition was met—that is, when the child entered the country and acquired residency. A similar fact pattern arose in Matter of Douglas, 26 I. & N. Dec. 197 (BIA 2013): the child entered the United States as lawful permanent resident; his mother naturalized; and his parents divorced, before the child‘s eighteenth birthday. There again, all of the statutory conditions of former section 321(a) were in effect when the last material condition was fulfilled.
Neither Baires-Larios nor Douglas directly presents the situation we have here: a claim for derivative citizenship through the single-parent provision despite the purported “single parent” remaining legally married to the child‘s other parent when the last material condition was fulfilled. Nor does either decision address the meaning of the contested phrase here (“when there has been a legal separation of the parents“) or really engage in statutory analysis at all. Accordingly, whatever interpretive weight is to be accorded to the BIA‘s decisions in Baires-Larios or Douglas—and neither decision is challenged here—we do not agree that they offer a longstanding or persuasive view entitled to weight in resolving the
The dissent also incorrectly characterizes our decision as deviating from textualist principles. According to the dissent, “there is no ‘plain meaning’ (i.e., no linguistically obvious) solution to the statutory question before us.” Dissent Op. at 3. But statutory language can have a “plain meaning“—and a court can discern its plain meaning—even where the text is not susceptible to a “linguistically obvious” solution, and even where, as here, the text presents more than one possible construction. See ECB USA, Inc. v. Chubb Ins. Co. of New Jersey, 113 F.4th 1312, 1326 (11th Cir. 2024) (discerning the plain meaning of contractual language despite existence of two possible readings) (citing Pulsifer, 601 U.S. at 141–142 (“The two possible readings thus reduce to one . . . .“). Former
Finally, the dissent characterizes our decision as requiring naturalization and legal separation to “take place simultaneously.” Dissent Op. at 2. Not so. We, like the BIA, hold that the “legal separation” referenced in former
All told, the dissent adopts a reading of the single-parent subsection in former
C.
The phrase “has been a legal separation of the parents” in former
PETITION DENIED.
With respect, I dissent. In my view, derivate citizenship under the former
I
A subsection of the immigration statute at issue in this case, the now-repealed
Only the first condition, then, is at issue. Because Mr. Turner‘s parents had remarried at the time the mother was naturalized, the statutory question is the meaning of the phrase
II
For the majority, the naturalization of the parent having legal custody is the relevant
The majority‘s reading is a plausible one, but it is not the only plausible one. If fact, the opposite of what the majority says about legislative drafting choices is also true. It can just as easily be said that if Congress wanted to require that naturalization and legal separation occur simultaneously, it could have done so expressly. For example, it could have used the phrase “naturalization of the
Contrary to what the majority says, there is no “plain meaning” (i.e., no linguistically obvious) solution to the statutory question before us. Indeed, the majority acknowledges that Mr. Turner‘s reading of the statutory language is grammatically reasonable and permissible. See also Barrett v. United States, 423 U.S. 212, 216 (1976) (concluding that the phrase “has been,” as used in a criminal firearm statute, was a present perfect tense verb which “denot[ed] an act that has been completed“).1
For me the “statutory language itself is perfectly ambiguous,” Picadilly Cafeterias, 554 U.S. at 54 (Breyer, J., dissenting), as the phrase “naturalization of the parent having legal custody of the child when there has been a legal separation of the parents” can be reasonably read to mean two different things. And, as relevant here,
One of our prior decisions has some language about congressional intent that supports the majority‘s reading. See Levy v. U.S. Att‘y Gen., 882 F. 3d 1364 (11th Cir. 2018). In that case, which addressed a claim that
III
Mr. Turner bears the burden of proving his “eligibility for citizenship in every respect.” Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967). And though any “doubts should be resolved in favor of the United States and against the claimant,” id. (internal quotation marks and citation omitted), I think Mr. Turner obtained derivative citizenship.
A
The Supreme Court‘s recent decision in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2273 (2024), overruled Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). As a result, federal courts no longer defer, as Chevron once required, to permissible agency interpretations of ambiguous statutory language. But Loper Bright did not affect Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944), which explained that the “interpretations and opinions” of an agency, “made in pursuance of official duty” and “based upon . . . more specialized experience,” can “constitute a body of experience and informed judgment to which
Skidmore matters here because the BIA has examined
In Matter of Baires-Larios, 24 I. & N. Dec. 467 (BIA 2008), an individual born in El Salvador in 1976 to Salvadorian parents moved to cancel her removal on the ground that she had derived U.S. citizenship under
Despite some Third Circuit cases to the contrary, e.g., Jordon, 424 F.3d at 330, the BIA ruled that the individual derived U.S. citizenship if she could prove she “came into her father‘s legal custody prior to reaching her 18th birthday, even if she was not in his custody on the date of his naturalization.” 24 I. & N. Dec. at 468–69. In so doing, the BIA relied in part on a 2008 Field Manual issued by U.S. Citizenship and Immigration Services which explained that because “‘the order in which the requirements [of
Five years later, in Matter of Douglas, 26 I. & N. Dec. 197 (BIA 2013), the BIA reaffirmed Baires-Larios in a factual scenario that somewhat mirrors Mr. Turner‘s case. In Douglas, the individual who claimed derivative citizenship under
The parents divorced two years after the mother‘s naturalization, when the individual was 14. The immigration judge rejected the individual‘s claim of derivative citizenship, apparently
The BIA again rejected the Third Circuit‘s view that the naturalization of the parent having custody has to take place after the legal separation of the parents. The BIA explained that the word “when” has “various meanings in different contexts” and was ambiguous as used in
Taken together, Baires-Larios and Douglas stand for the proposition that the statutory conditions set out in
Under Baires-Larios and Douglas, which I find persuasive under Skidmore, Mr. Turner arrived derivative citizenship even though his parents were not legally separated at the time of his mother‘s naturalization. All that matters is that those two conditions existed at some point before Mr. Turner was 18.
B
The majority rejects Baires-Larios and Douglas in part because it says that “Congress has not empowered the BIA to decide the statutory question before us.” Maj. Op. at 23. I believe the majority is mistaken on this point.
A provision of the INA states that
[t]he Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
The Attorney General is statutorily authorized to delegate his authority under the INA, see
The Board shall function as an appellate body charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it. The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations. In addition, the Board, through precedent decisions, shall provide clear and uniform guidance to DHS, the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations.
When the BIA decided Baires-Larios and Douglas in an adjudicative capacity, it was acting pursuant to authority properly
IV
Mr. Turner obtained derivative citizenship under