In re HOOVER
Nos. 04-B-35040, 04-B-22548, 06-B-4487
United States Bankruptcy Court, N.D. Illinois
August 21, 2006
2006 WL 2457435
Given this conclusion, we have no need to consider Hoover’s challenges to the other “causes” for conversion found by the bankruptcy court. As the Trustee points out, and Hoover does not contest, one cause is enough.
B. Best Interests of Creditors
Once the bankruptcy court determined that there was cause to convert the case, it had broad discretion to do so if it concluded that conversion was in the best interests of creditors and the estate.
Hoover argues to us, nevertheless, that the creditors will mostly get nothing on liquidation after both the administrative fees and his Massachusetts tax obligation (in part) are paid. Therefore, he reasons, even a long shot at making a go of it under Chapter 11 is worth it for the creditors. Hoover, though, did not make this argument to the bankruptcy court; therefore, we can consider the argument waived. See In Re Net-Velázquez, 625 F.3d 34, 40 (1st Cir. 2010) (“[A]bsent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.” (quoting Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992))). Even if not waived, this argument would fail. Confronted with two likely bleak alternative outcomes, the bankruptcy court had ample discretion to conclude that a prompt conversion rather than further diminution was in the best interests of creditors, especially where no creditor opposed conversion as hostile to its interests.
We therefore find no error of law or abuse of discretion by the bankruptcy court in converting Hoover’s Chapter 11 bankruptcy case to Chapter 7.
IV. Conclusion
The judgment of the district court, affirming the order of the bankruptcy court, is affirmed.5
Pierre THOMAS, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1805
United States Court of Appeals, First Circuit.
July 5, 2016
Linda Y. Cheng, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Acting Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before KAYATTA, BARRON, and STAHL, Circuit Judges.
BARRON, Circuit Judge.
We must decide in this case whether petitioner Pierre Thomas satisfied the applicable statutory criteria for obtaining derivative citizenship in consequence of his mother’s naturalization. Those criteria were set forth in the derivative citizenship statute that was in effect at the time that Thomas was still a minor. Thomas concedes that he is removable as an alien who has been convicted of an aggravated felony if he did not satisfy those criteria. Because we conclude that he did not satisfy them, we deny his petition.
I.
The following facts are not in dispute. Thomas was born in Haiti and was lawfully admitted to the United States in 1986, at the age of five, as a nonimmigrant visitor. He was authorized to remain in the United States for six months, but he and his parents remained in the country beyond that date. After his father died in 1993, Thomas continued to live in the United States with his mother for the remainder of his childhood.
At some point while Thomas was a child, his mother obtained lawful permanent resident status. On July 31, 1995, when Thomas was fourteen years old, Thomas’s mother filed an I-817 Application for Voluntary Departure on Thomas’s behalf under the Family Unity Program.1 That application was approved on August 25, 1995, giving
On May 18, 1999, Thomas’s mother became a naturalized United States citizen. Three days later, Thomas turned eighteen years old. Thomas did not apply to become a lawful permanent resident during that three-day period that followed his mother’s naturalization or at any other point. Instead, he continued living in the United States without a lawful admission for permanent residence.
In 2003, Thomas was convicted in Massachusetts state court for armed robbery. Then, in 2012, the United States initiated removal proceedings against Thomas pursuant to section 237(a)(2)(A)(iii) of the INA (
Thomas’s current petition is for review of the denial by the BIA of his motion to reopen the proceedings against him. Thomas made that motion after he was arrested on a charge of illegal reentry upon his return to the United States in April 2015.
Because the motion was filed more than 90 days after the BIA’s 2013 removal order, the BIA denied his motion to reopen on timeliness grounds. See
II.
Thomas’s petition hinges on the proper construction of the derivative citizenship law that was in effect before Thomas turned eighteen years old. That law, former section 321(a) of the INA, provided that:
A child born outside of the United States of alien parents ... becomes a citizen of the United States upon ...
(2) The naturalization of the surviving parent if one of the parents is deceased;
... 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 naturalized under clause (2) ... of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
Thomas and the government agree that Thomas’s mother, as his lone surviving parent, was naturalized while Thomas was under eighteen. The parties further agree that Thomas was not “residing in the United States pursuant to a lawful admission for permanent residence at the time of [his mother’s] naturalization.” The only question we must address, therefore, is whether Thomas, upon his mother’s naturalization, “thereafter beg[an] to reside permanently in the United States while under the age of eighteen years.”
Under the BIA’s interpretation of former section 321(a), the answer is that Thomas clearly did not. The BIA has concluded that “the phrase ‘begins to reside permanently in the United States while under the age of eighteen years,’ is most reasonably interpreted to mean that an alien must obtain the status of lawful permanent resident while under the age of 18 years.” Matter of Nwozuzu, 24 I. & N. Dec. 609, 612 (BIA 2008). In other words, according to the BIA, the latter clause of paragraph (5) in former subsection 321(a) contains “a shorthand reference to the requirement of the first clause.” Id. at 614 n. 5. Thus, as Thomas concedes, Thomas’s citizenship claim would fail under the BIA’s interpretation because he “was not lawfully admitted for permanent residence prior to his 18th birthday” and thus never satisfied either clause.
Thomas argues that we should reject the BIA’s interpretation of that section. He contends that we should join the Second Circuit in concluding that the BIA’s interpretation, under which the second clause of former paragraph 321(a)(5) is merely a shorthand reference to the first clause, is contrary to the plain language of the statute because the phrase “reside permanently” in the second clause unambiguously means something broader than “resid[e] ... pursuant to a lawful admission for permanent residence” in the first clause. See Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013); but see United States v. Forey-Quintero, 626 F.3d 1323, 1326-27 (11th Cir. 2010) (adopting the BIA’s interpretation).3
Thomas further contends that he satisfied the requirements of that broader, second clause because he satisfied the criteria for “residing permanently” that the Second Circuit set forth in Nwozuzu. According to Nwozuzu, “‘[b]egins to reside permanently’ does not require ‘lawful permanent resident’ status” but merely requires “some objective official manifestation of the child’s permanent residence.” 726 F.3d at 333.
In the end, as we will explain, Thomas cannot satisfy the statutory criteria even under his preferred, broader reading of
III.
If one knew nothing else, it would not be altogether surprising if the phrase “reside permanently” was, as the BIA contends, just a shorthand for “resid[e] ... pursuant to a lawful admission for permanent residence.” Those two words appear right after the longer phrase, in the same section, and one certainly might use those words colloquially as a shorthand description of what came before.
But there are some contrary indications that point towards Thomas’s preferred reading. The phrase “reside permanently” is not defined in the INA, but the phrase “lawfully admitted for permanent residence” is. And the definition of that longer phrase includes “residing permanently” as a component part, thus suggesting they are not synonyms.5
Similarly, the terms “permanent” and “residence” are separately defined in the INA, each without reference to lawful admission. “Permanent” is defined in the INA as “a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.”
Moreover, if one looks elsewhere in the United States Code, Congress has sometimes distinguished between “an alien lawfully admitted for permanent residence” and one who is “otherwise permanently residing in the United States under color of law.” See, e.g.,
On the other hand, if “reside permanently” is read as something broader than a shorthand reference to “resid[e] ... pursuant to a lawful admission for permanent residence,” the requirements for becoming a citizen at the time of the relevant naturalization would be stricter than the requirements for becoming a citizen after that naturalization. But it is not at all clear why Congress would have intended that result. Indeed, under the parallel section of the predecessor statute, the 1940 Nationality Act (“1940 Act”), the requirements for acquiring derivative citizenship at the time of the relevant naturalization apparently were less strict than were the requirements for becoming a citizen “thereafter.”6
Similarly, a consideration of the adjacent section of the INA, former section 320, also points against the broader reading of “reside permanently” because of the strange disjuncture that would otherwise arise. Former section 320 addressed how aliens who were born abroad to one alien parent and one citizen parent — as opposed to aliens born abroad to two alien parents, which former section 321 addressed — could acquire derivative citizenship.
Under the plain language of former section 320, aliens born abroad to one alien parent and one citizen parent could not acquire derivative citizenship without obtaining a lawful admission for permanent residence.7 It is therefore hard to see why Congress would have intended for aliens born abroad to two alien parents to be able to acquire derivative citizenship without obtaining such an admission. And yet, under Thomas’s reading of “reside permanently” in former section 321, one would have to conclude that Congress did intend for that to be the case.8
IV.
Because Thomas concedes that he was not residing in the United States pursuant to a lawful admission for permanent residence at the time of his mother’s naturalization, he can only prevail if he “thereafter beg[an] to reside permanently in the United States while under the age of eighteen years.”
The record reveals that Thomas took no official action with respect to his citizenship status in the three-day window between his mother’s naturalization and his eighteenth birthday. Thomas never applied for lawful permanent resident status,9 and the filings of both the I-130 and the I-817 were made prior to his mother’s naturalization. Moreover, the objective factors that might lead one to think he resided permanently in the United States — such as his years of residence and the presence of family members in the country — were all present before she was naturalized (and “at the time of the naturalization”).
Thus, even if we assume that Thomas “reside[d] permanently” in the United States during the time period to which the statute directs our attention, he “beg[an]” to do so before his mother was naturalized and then never experienced any relevant change in status or took any relevant action between the time of her naturalization and his eighteenth birthday. Accordingly, it is hard to see how, following his mother’s naturalization, he can be said to have “thereafter beg[un] to reside permanently.”
Nor can we simply read “thereafter begins to reside permanently” to mean “thereafter ... reside[s] permanently.” Doing so would require us not only to ignore the word “begins” but also to drop the word “to” and change “reside” to “resides,” and we are not in the business of rewriting statutes.
In addition to this obvious textual problem, such a reading runs counter to even the Second Circuit’s description of the function of the second clause. The Nwozuzu Court explained that the purpose of that second clause is to “address[ ] minors who, at the time the [relevant] parent was naturalized, either lived abroad or lived in the United States but had not been ‘lawful-
Relatedly, reading “begins” out of the statute seems to render the first clause of the paragraph superfluous if “reside permanently” is not a shorthand, as it is hard to see how one who is “residing ... pursuant to a lawful admission for permanent residence” is not also necessarily one who is “resid[ing] permanently.” Cf. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008); Matter of Nwozuzu, 24 I. & N. Dec. at 614.10
Thomas makes no attempt to address the problems that the words “thereafter begins” pose for his attempt to fit the facts of his case into the statute. It is true that giving force to those words could advantage aliens who start residing permanently in the United States later over those who do so earlier. But that arguably anomalous consequence arises only on a broad construction of “reside permanently.” If that phrase is instead construed as a shorthand for “resid[e] ... pursuant to a lawful admission for permanent residence,” then the statute provided no incentive for aliens to delay the onset of their permanent residence.
In light of the problems with reading “begins” out of former section 321(a)(5), and because the only argument we have identified against giving force to “thereafter begins” seems to support the proposition that “reside permanently” was a shorthand, we conclude that Thomas did not satisfy the terms of the statute. Accordingly, his claim to derivative citizenship fails.11
V.
For the reasons set forth above, we deny Thomas’s petition for review.
BARRON
CIRCUIT JUDGE
Notes
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.
shall, if such alien parent is naturalized, become a citizen of the United States, when ...
(1) such naturalization takes place while such child is under the age of eighteen years; and
(2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of eighteen years.