Case 17-1512, Document 127, 01/09/2018, 2209917, Page1 of 22

No. 17-1512
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

LEVY ALBERTO JAEN,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF A DECISION OF

THE BOARD OF IMMIGRATION APPEALS
Agency No. 076-187-995

PETITIONER’S REPLY BRIEF

Andrea A. Saenz Ian Samuel

Brooklyn Defender Services 1648 Massachusetts Ave. #46
180 Livingston Street, Suite 300 Cambridge, MA 02138
Brooklyn, NY 11201 (917) 803-8609
(718) 254-0700 x434
Counsel for Petitioner
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page2 of 22

TABLE OF CONTENTS

INTRODUCTION....................................................................................................................... 1

ARGUMENT .............................................................................................................................. 2
I. The Government Has Failed to Advance Any Argument that the Term
“Parent” Should Not be Given its Ordinary Common-Law Meaning ................. 2

II. Under New York Law, Jorge Boreland is Levy Jaen’s Parent ................................ 4

III. The Government’s Biological-Relationship Rule is Without Merit ...................... 7

A.
The biological-relationship rule is inconsistent with the text of the INA ..... 8
B.
The biological-relationship rule would create a square conflict with the
Ninth Circuit.......................................................................................................... 9
C. The agency manuals in question are not entitled to deference ..................... 11
D. The biological-relationship rule was not the basis for the agency’s
decision................................................................................................................. 14
CONCLUSION ......................................................................................................................... 17

i
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page3 of 22

TABLE OF AUTHORITIES
Cases

Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004) ................................................................ 5, 6

Bueno Gil v. Sessions, 851 F.3d 184 (2d Cir. 2017) ................................................................ 4
Christensen v. Harris County, 529 U.S. 576 (2000) ..................................................2, 8, 12, 13
Comollari v. Ashcroft, 378 F.3d 694 (7th Cir. 2004)............................................................. 15
Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011) ........................................................ 8, 12
Custis v. Murphy, 511 U.S. 485 (1994).................................................................................... 9
Ex parte Presse, 554 So. 2d 406 (Ala. 1989) .......................................................................... 4
Florida Power & Light Co. v. F.E.R.C., 85 F.3d 684 (D.C. Cir. 1996) .............................. 14
Garcia v. ICE, 669 F.3d 91 (2d Cir. 2011) ........................................................................ 5, 6
Lynch v. Morales-Santana (S. Ct. No. 15-1191) (Aug. 19, 2016) ........................................ 16
Matter of Butt, 26 I&N Dec. 108 (BIA 2013) ..................................................................... 12
Matter of Luna, 18 I&N Dec. 385, 386 (BIA 1983) ............................................................. 5
Michael H. v. Gerald D., 491 U.S. 110 (1989) ........................................................................ 3
Morissette v. United States, 342 U.S. 246 (1952)...................................................................... 3
Neder v. United States, 527 U.S. 1 (1999) ................................................................................ 3
Nguyen v. Holder, 743 F.3d 311 (2d Cir. 2014) .................................................................. 4, 6
Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) ............................................................... 4
Nwozuzu v. Holder, 726 F.3d 323, 327–28 (2d Cir. 2013) ................................................... 9
Proffitt v. FDIC, 200 F.3d 855 (D.C. Cir. 2000) ................................................................. 13
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017) ............................ 3
Russello v. United States, 464 U.S. 16, 23 (1983) .................................................................... 9
Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) ...............................................................passim
SEC v. Chenery Corp., 332 U.S. 194 (1947) ................................................................. 2, 8, 14
Sekhar v. United States, 133 S. Ct. 2720 (2013) ...................................................................... 3
Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017) ................................................................ 7
Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184 (2d Cir. 2005) .............................. 14, 15
Singh v. U.S. Dep't of Justice, 461 F.3d 290 (2d Cir. 2006) .......................................... 2, 8, 14
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).......................................... 6, 7, 10
United States v. Ginsberg, 243 U. S. 472 (1917) .................................................................... 16
United States v. Soler, 759 F.3d 226 (2d Cir. 2014) ................................................................ 3
Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) .................................................................... 3

Statutes & Regulations

8 C.F.R. §1003.10(d)............................................................................................................. 12
8 U.S.C. §1401 (a)(7) (1972) ...................................................................................... 9, 13, 17
8 U.S.C. §1409(a)(1) ............................................................................................................... 9
ii
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page4 of 22

8 U.S.C. §1409(a)(3) ............................................................................................................. 10

U.S.C. §1401(a)(7) ................................................................................................................... 1

Other Authorities

Br. for the Government, Lynch v. Morales-Santana (S. Ct. No. 15-1191) (Aug. 19, 2016)
............................................................................................................................................. 16
Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to Standing to
Rebut the Marital Presumption of Paternity, 76 N.W.U. L. REV. 669 (1981) ........... 4

iii
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page5 of 22

INTRODUCTION

The government does not dispute that, at the time of his birth, Levy Jaen’s

mother was married to a United States citizen who lived in New York. The

government does not dispute that, under the common-law definition of a “parent,”

Levy Jaen therefore has one United States citizen parent (pater est quem nuptiae

demonstrant—“the nuptials show who is the father”). Nor does the government

meaningfully dispute that, were the matter one of New York law, Levy Jaen would

also have one United States citizen parent. Nor does the government dispute that, if

Levy Jaen has a United States citizen parent, he is a citizen at birth under former 8

U.S.C. §1401 (a)(7)—the government does not contest, in other words, that the

various other requirements of citizenship are met.

Instead, in a brief presentation—the operative portion of the argument runs

just six paragraphs—the government asks this Court to adopt, for the first time in this

litigation, a new theory. The new theory goes something like this: this Court should

not look to New York law to define parentage, because Jaen did not reside in New

York at the time of his birth. (The government does not explain why, even then, this

Court would not simply use the common-law definition of a parent.) Instead, the

government argues, the term “parent” should be defined by reference to a pair of

government manuals that require a biological relationship for a parent and child.

The most serious problem with the government’s theory is that it is

inconsistent with the statutory text. But it has other problems, too. The government

1
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page6 of 22

never explains why its internal manuals would be a source of interpretive meaning for

the statute: “agency manuals … do not warrant Chevron-style deference,” and the

government suggests no other reason to embrace them. Christensen v. Harris

County, 529 U.S. 576 (2000). The government’s theory has also been explicitly rejected

by the only court of appeals to ever consider it, meaning that this Court would need

to create an explicit inter-circuit conflict to adopt it. Scales v. INS, 232 F.3d 1159,

1165–66 (9th Cir. 2000) (rejecting the government’s reliance on the State

Department’s Foreign Affairs Manual in an identical context). Finally, this was not the

rationale given by the agency, which bars this Court from using it as a basis to sustain

agency action under foundational rules of administrative law. SEC v. Chenery Corp., 332

U.S. 194, 196–97 (1947); Singh v. U.S. Dep't of Justice, 461 F.3d 290, 294 n. 3 (2d Cir.

2006) (this Court “cannot, on appeal, substitute an argument … for those that the

BIA actually gave to support [its] conclusion”).

The petition for review should therefore be granted.

ARGUMENT

I. The Government Has Failed to Advance Any Argument that the Term
“Parent” Should Not be Given its Ordinary Common-Law Meaning

In the opening brief, we argued (at 10–13) that the critical term in the statute

that determines Jaen’s citizenship, “parent,” is not defined in the INA, and

therefore—because the text “evidences no intent to deviate from common law

rules”—it should be given “the common law definition of the term.” Reyes v. Lincoln

2
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page7 of 22

Automotive Financial Services, 861 F.3d 51, 56–57 (2d Cir. 2017). We further argued (at

12–13) that under the common-law definition of “parent,” a man who is married to a

woman that gives birth is by definition that child’s parent. See Michael H. v. Gerald D.,

491 U.S. 110, 124–25 (1989) (plurality opinion by Scalia, J.).

In its brief, the government disputes neither the major nor minor premise of

this argument. To be clear, the government does briefly argue (at 13–14) that this

Court should not look to New York law, an argument that is addressed below. But

nowhere does the government dispute the quite separate presumption that “Congress

intends to incorporate the well-settled meaning of the common-law terms it uses.”

Neder v. United States, 527 U.S. 1, 23 (1999). This is a “settled principle of

interpretation.” Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013). It is also a well-

justified one, because “where Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of practice, it presumably

knows and adopts the cluster of ideas that were attached to each borrowed word in

the body of learning from which it was taken and the meaning its use will convey to

the judicial mind unless otherwise instructed.” Morissette v. United States, 342 U.S. 246,

250 (1952). In such cases, “the common law furnishes an extrinsic source to aid our

interpretation of the disputed term.” United States v. Soler, 759 F.3d 226, 233 (2d Cir.

2014). The government’s failure to dispute this principle means any objection is

waived. See Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005) (arguments are

3
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page8 of 22

abandoned when a party fails “to discuss [them] anywhere in his brief.”) (citing Norton

v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)).

In addition to conceding the interpretive principle, the government apparently

concedes its result here. As explained in the opening brief (at 12), the common-law

presumption that renders Jaen’s mother’s husband his “parent” is often described as

“one of the strongest … known to the law.” Ex parte Presse, 554 So. 2d 406, 413 (Ala.

1989) (quoting Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to

Standing to Rebut the Marital Presumption of Paternity, 76 N.W.U. L. REV. 669

(1981)). The government does not dispute this, either.

This Court need go no further than these concessions to grant the petition for

review. The government has not disputed the relevant interpretive principle, has not

disputed what it means for this case, and as a result, its remaining arguments need not

be addressed. Jorge Boreland is Levy Jaen’s “parent” for purposes of the INA because

he is his “parent” in the common-law sense of that term, and the petition should

therefore be granted.

II. Under New York Law, Jorge Boreland is Levy Jaen’s Parent

In the opening brief (at 13–16), we argued that, when interpreting otherwise-

undefined domestic-relations terms of the INA, federal courts often borrow from

local state law. See, e.g., Nguyen v. Holder, 743 F.3d 311 (2d Cir. 2014) (looking to New

York law to determine validity of marriage); Bueno Gil v. Sessions, 851 F.3d 184, 189 (2d

Cir. 2017) (analyzing whether the petitioner qualified as a “child” under New York

4
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page9 of 22

law, to evaluate whether he was a citizen); Matter of Luna, 18 I&N Dec. 385, 386 (BIA

1983) (existence of a valid marriage is determined by law of place of celebration). The

opening brief further argued (at 14–16) that, under New York law, Jorge Boreland is

Jaen’s “parent,” a point amply supported by amici. See Br. of Family Law Professors at

3 (noting that the “presumption of legitimacy of a child born during wedlock has been

a mainstay of family and domestic relations law in New York for decades”).

In response, the government acknowledges (at 13-14) the general rule

described above. The government (in fact) cites another example of its application:

Garcia v. ICE, 669 F.3d 91, 94–95 (2d Cir. 2011), in which this Court looked to New

York law to determine whether a child was in the “legal custody” of his citizen parent,

such that the child (in the circumstances of that case) was also a citizen under a

former provision of the INA. As this Court observed, even when defining federal-law

terms in the INA, courts “often look to state law for a rule of decision where there is

no extant body of federal common law in the area of law implicated by the statute.”

Id. at 95 (quoting Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004)). As noted above,

here, there is a common-law rule, under which Jaen is entitled to judgment. But if

there is not, then New York law would be the next logical source of meaning.

The government first argues (at 13) that this rule should not control, because in

Garcia “the Court was addressing a different issue”—namely, the existence of legal

custody, not parentage. That confuses the general rule (“look to state law for aid in

interpreting family-law terms”) with its application in a given case. And the

5
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page10 of 22

government does not explain why it would make any principled difference: legal

custody and parentage are both family-law concepts that the INA does not further

define, and this Court spoke in general terms. Moreover, the government does not

address the many other areas where this Court has looked to state law for guidance

(cited in the opening brief), such as the existence of a legal separation (Brissett, quoted

in Garcia); the validity of a marriage (Nguyen); or whether or not a person is a “child”

(Bueno Gil). The government’s point that Garcia (at 13) featured “genuine issues of

material fact in dispute as to custody” is therefore irrelevant: Garcia was consulting

state law to determine what “legal custody” was, just as this Court in this case could

consult New York law to determine what being a “parent” is. 669 F.3d at 95.

The government also contends (at 13) that Garcia is distinguishable because

both the child and his father resided in New York at the time of the relevant events.

The term this case concerns, however, is “parent”—and the government does not

dispute that Jorge Boreland, the putative parent, was also domiciled in New York at

the relevant time for this case (and before and after). Certified Administrative Record

(“AR”) 326-33, 338-44, 365 (family and immigration documents). In that sense, this

case is precisely comparable to Garcia. Moreover, the Ninth Circuit in both Scales and

Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), had no trouble concluding

that it was the law of the putative parent’s domicile that mattered. In Scales, the

petitioner (just as here) was born abroad; his mother’s husband, just as here, resided in

the United States (in Washington State, at the time of the petition); the Ninth Circuit

6
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page11 of 22

therefore applied Washington law to the question of parentage. 232 F.3d at 1163.

Similarly, in Solis-Espinoza, the petitioner was born abroad, but his natural parent’s

spouse was a resident of California; the court of appeals thus applied California law to

determine whether that person was also his “parent.” 401 F.3d at 1093–94.

Using the putative parent’s domicile as the relevant source of domestic law is

also sensible. The legal entitlement of a parent to “pass citizenship to his son” is one

the law guards closely—indeed, it is one that may even be derivatively asserted by the

child. Sessions v. Morales-Santana, 137 S.Ct. 1678, 1689 (2017). Jorge Boreland’s duties

with respect to Jaen were fixed by the laws of New York, his residence, which laws

regarded him precisely as he regarded himself: as Jaen’s father. It is sensible, therefore,

that the laws of his residence should also correspondingly bear on his right to pass his

citizenship to his son, just as the Ninth Circuit has held.

III. The Government’s Biological-Relationship Rule is Without Merit

The government’s principal argument (at 12) is that Jaen is not a citizen

because “neither of his biological parents were United States citizens.” The

government repeatedly emphasizes (at, e.g., 15) its view that an “actual biological

relationship” is required for someone to be a “parent” under former section 1401.

The government does not argue that this is required by the statutory text—indeed, as

will be argued below, the requirement is inconsistent with it, and the government does

not argue otherwise. Nor does the government argue that any other federal court has

7
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page12 of 22

ever adopted this theory—indeed, as will be argued below, the only court to ever

consider it has rejected it, and the government more or less admits this.

Instead, the government grounds its biological-relationship rule exclusively in

two policy manuals—the United States Citizenship and Immigration Services

(“USCIS”) Policy Manual (at 14–15) and the State Department’s Foreign Affairs

Manual (at 15–16). See also Gov’t Br. 14 (noting its policy manuals “require the

existence of a biological relationship”). An immediate problem with this rationale is

that it is not the one the agency itself relied upon, and so it is not an available ground

for sustaining the agency’s action. See SEC v. Chenery Corp., 332 U.S. 194, 196–97

(1947); Singh v. U.S. Dep't of Justice, 461 F.3d 290, 294 n. 3 (2d Cir. 2006). More

important, on the merits, the major premise of the argument is never explained: Why

would it matter what an internal agency guidance manual said about the meaning of

the federal statute? Such documents are not entitled to Chevron deference. Christensen v.

Harris County, 529 U.S. 576, 587 (2000); Cruz-Miguel v. Holder, 650 F.3d 189, 200 (2d

Cir. 2011) (declining to give effect, in immigration case, to a similar manual).

A. The biological-relationship rule is inconsistent with the text of the

INA

The most important reason to reject the government’s biological-relationship

rule is that it is inconsistent with the text and structure of the INA, as argued in the

opening brief (at 16–17). As argued there, when “Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it

8
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page13 of 22

is generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983); see also

Nwozuzu v. Holder, 726 F.3d 323, 327–28 (2d Cir. 2013) (applying this principle in a

citizenship case).

But whereas former §1401 contains no stated requirement of a blood

relationship, other sections of the citizenship provisions do. When a child is born to

an unmarried mother, the INA requires the establishment of “a blood relationship

between the person and the father,” by “clear and convincing evidence,” before the

child may inherit citizenship from a citizen father. 8 U.S.C. §1409(a)(1). Yet Congress

elected not to include that requirement for children born in wedlock, as Jaen was. Had

the legislature meant to depart from the traditional common-law rule, and require that

a “parent” have a biological relationship for purposes of former §1401, “it knew how

to do so.” Scales, 232 F.3d at 1164 (quoting Custis v. Murphy, 511 U.S. 485, 492 (1994)).

The government, in its brief, does not respond to this argument. But it is a

serious problem for its biological-relationship theory because it illustrates that the

theory is inconsistent with the text and structure of the statute. That alone is reason

enough to prefer the alternative interpretations offered in the opening brief.

B. The biological-relationship rule would create a square conflict

with the Ninth Circuit

As explained in the opening brief, the only other court of appeals to consider

the question presented in this case has resolved it against the government. See Scales v.

9
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page14 of 22

INS, 232 F.3d 1159, 1163 (9th Cir. 2000); Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th

Cir. 2005). In response, the government suggests obliquely (at 17 n.6) that those

decisions are incorrect, but also argues that they are distinguishable. In those cases,

says the government (at 16–17), “the non-United States-citizen parent”—that is, the

biological parent that, in the government’s view, is the child’s parent—“either had

abandoned or was unknown to the petitioner.” And in both cases, the government

notes, the child grew up in the citizen parent’s household.

But why would that matter? In both cases, it was completely clear that the child

had no biological relationship to his citizen parent. That the child’s biological parent

had abandoned him is logically irrelevant to the question of whether the citizen parent

is his “parent” for purposes of the INA. Moreover, former §1401 governs citizenship

at birth. The title of the section, in fact, is “Nationals and Citizens of the United States

at Birth.” 8 U.S.C. §1401. Nothing in the statute calls for an evaluation of whether or

not the child’s parent later “abandons” him, or with whom he grows up; as a matter

of both textual and temporal logic, no such evaluation is permissible. (By contrast, for

children born out of wedlock, events after birth are explicitly made relevant. See, e.g.,

8 U.S.C. §1409(a)(3) (father must agree in writing to financially support the child).) It

must be possible under former §1401 to answer the question “is this child an

American citizen?” on the day that child is born. In fact, on the page of its brief

immediately before the government’s attempt to distinguish Scales and Solis-Espinoza,

the government makes this very point. Gov’t Br. 16 (discounting the relevance of a

10
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page15 of 22

birth certificate issued “five years after” Jaen was born, because what matters is events

“at the time of his birth”) (emphasis in original).

The government, moreover, does not point to anything in the rationale of

either Scales or Solis-Espinoza that supports its proposed limitation. Those cases are

about how to define a “parent” for purposes of former §1401, and they give a simple

answer: look to state law. The government gives no reason to think that this would

only be appropriate in the precise factual circumstances of those cases, and nothing in

the text of either opinion supports this. Whether or not a child’s biological relations

are known or unknown has nothing to do with the source of law one uses to decide

what being a “parent” means. The government’s distinguishing line, in other words, is

simply an elaborate gerrymander: it identifies a pair of facts that it believes to be

different in that case, but it supplies no explanation for why those differences would

matter. That is because they do not.

C. The agency manuals in question are not entitled to deference

The government, in its brief, never actually supplies a reason why its policy

manuals would be used to interpret the statutory term at issue here. Instead, the

government attempts (at 14) to rule out the use of New York law, and then simply

asserts—without any hint of justification—that its internal agency manuals should be

used: “Absent a reason to look to New York law as to paternity, as a matter of policy,

both USCIS and the State Department require the existence of a biological

relationship.” Gov’t Br. 14. The task before this Court, however, is not to decide

11
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page16 of 22

whether the government’s position is wise “as a matter of policy”; rather, it is to

interpret the statute Congress wrote.

To the extent the government is suggesting its agency manuals should receive

Chevron deference, that contention is without merit. “Interpretations … contained in

policy statements, agency manuals, and enforcement guidelines, all of which lack the

force of law” do not “warrant Chevron-style deference.” Christensen v. Harris County, 529

U.S. 576, 587 (2000). In Cruz-Miguel v. Holder, this Court—for that reason—declined

to give effect to USCIS’ “Adjudicator’s Field Manual,” which is the predecessor

manual to the one invoked by the government here. 650 F.3d 189, 200 (2d Cir. 2011);

see also About the USCIS Policy Manual, USCIS (Aug. 23, 2017) (“The USCIS Policy

Manual will ultimately replace the Adjudicator’s Field Manual”).1 Indeed, the USCIS

Policy Manual, issued by the Department of Homeland Security, is not even binding

on immigration judges or the BIA, which are part of the Department of Justice. See 8

C.F.R. §1003.10(d) (immigration judges are bound by the text of the INA and by

decisions of the BIA and the Attorney General); Matter of Butt, 26 I&N Dec. 108, 111

n.3 (BIA 2013) (USCIS policy and memoranda are not binding on the BIA). It would

therefore be perverse to hold that they are binding on an independent federal court.

The State Department’s Foreign Affairs Manual (invoked by the government at

15–16) fares no better. As the Ninth Circuit explained in Scales, the State Department

1
https://www.uscis.gov/policymanual/HTML/PolicyManual.html#introduction

12
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page17 of 22

has no role in determining the citizenship of a person in Jaen’s position. 232 F.3d at

1165 (State Department is only charged with determinations of citizenship for people

“not in the United States”). Because “the State Department is not the agency

entrusted with the determination of Petitioner's citizenship … its statement is not

entitled to deference.” Id. (citing Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000)

("When a statute is administered by more than one agency, a particular agency’s

interpretation is not entitled to Chevron deference.”). On top of that, the manual

suffers from the same defects as the USCIS manual: because “it is not an

interpretation arrived at after, for example, a formal adjudication or notice-and-

comment rulemaking,” it is—under Christensen—not entitled to deference. Id. (quoting

Christensen, 529 U.S. at 576).2 Moreover, the Foreign Affairs Manual “is not specifically

an interpretation of [former] §1401.” Id. That is crucial, because the immigration laws

contain a quite detailed scheme governing which children are citizens at birth, and the

FAM contains no suggestion that it meant to interpret this specific provision of those

citizenship requirements.

Finally, the government cites its current manuals, but does not even attempt to

document what the manuals said (or even if they existed) in 1972, when Jaen was

born. AR 353. Yet elsewhere (at, for example, 16) the government is at pains to

2Indeed, the government has made it clear that its internal manuals are not subject to
the requirements of the APA, see “Policy Manual for Comment,”
https://www.uscis.gov/outreach/feedback-opportunities/policy-manual-comment
(noting that USCIS is not required to solicit public comments on manual changes).

13
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page18 of 22

emphasize that what matters are the facts as they existed “at the time of [Jaen’s] birth.”

(Emphasis in original.) The government does not supply any reason that a policy

manual that was written in 2017 should control the at-birth citizenship status of a

child born forty-five years prior, and none exists.

At bottom, the government’s manuals tell us nothing we did not already know:

they tell us that, in the government’s view, Levy Jaen is not a citizen. That much is

clear. The question before this Court, however, is whether that position is consistent

with the statute written by Congress, not policy manuals written by agencies

themselves.

D. The biological-relationship rule was not the basis for the agency’s
decision

As this Court has repeatedly held, a reviewing court “cannot, on appeal,

substitute an argument—even one the BIA made in another context—for those that

the BIA actually gave to support the conclusion ... dispute[d] on appeal.” Singh v. U.S.

Dep't of Justice, 461 F.3d 290, 294 n. 3 (2d Cir. 2006). And “it is not difficult to

understand why”; were “courts obliged to create and assess ex-post justifications for

inadequately reasoned agency decisions, courts would, in effect, be conscripted into

making policy.” Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 192 (2d Cir. 2005).

See also SEC v. Chenery Corp., 332 U.S. 194, 196–97 (1947) (“It will not do for a court

to be compelled to guess at the theory underlying agency action”); Florida Power &

Light Co. v. F.E.R.C., 85 F.3d 684, 689 (D.C. Cir. 1996) (“[T]he agency runs this

14
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page19 of 22

regulatory program, not its lawyers; parties are entitled to the agency’s analysis of its

proposal, not post hoc salvage operations of counsel.”); Comollari v. Ashcroft, 378 F.3d

694, 696 (7th Cir. 2004) (“As we tirelessly remind the lawyers from the Justice

Department's Office of Immigration Litigation, the Chenery rule bars a reviewing court

from upholding an agency's decision on a ground different from the agency’s”)

(multiple citations omitted).

The agency record contains no mention of the government’s new theory. The

BIA decision does not mention the either of the manuals the government now argues

form the basis for denying the petition. AR 3-5. Nor did the BIA conclude, as the

government now argues, that a biological relationship is required; instead, it explicitly

contemplated citizenship being transmitted where “there is no evidence of any non-

biological connection between the biological father and the child.” AR 4. Instead, the

BIA’s decision rested on the content of one of Jaen’s Panamanian birth certificates, a

rationale the government has now essentially abandoned. See id. (“If the respondent’s

mother’s husband was listed on his initial birth certificate and this case arose in the

Ninth Circuit, we would agree with the respondent’s argument.”). The decision of the

Immigration Judge similarly makes no mention of the government manuals now

invoked as decisive, and does not adopt the bright-line biological-relationship rule

now advanced by the government. AR 64-66.

The rule of Chenery is especially important in the acquired-citizenship context.

Chenery exists to prevent the judiciary from making policy in domains that are reserved

15
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page20 of 22

to the political branches. See Shi Liang Lin, 416 F.3d at 192 (if courts were to “assess

ex-post justifications for inadequately reasoned agency decisions, courts would, in

effect, be conscripted into making policy.”). But judicial power over citizenship is, in

particular, sharply proscribed—as the government is often at pains to emphasize. E.g.,

United States v. Ginsberg, 243 U. S. 472, 474 (1917) (a person who seeks “political rights

as a member of this Nation can rightfully obtain them only upon terms and

conditions specified by Congress,” and “[c]ourts are without authority to sanction

changes or modifications.”); see also Br. for the Government, Lynch v. Morales-Santana

(S. Ct. No. 15-1191) (Aug. 19, 2016), at 50 (quoting Ginsberg, and arguing that courts

have no general equitable power to make citizenship decisions). This Court should

therefore decline the government’s invitation to deny Jaen citizenship on a basis that

the agency never articulated and that is at any rate, as argued below, inconsistent with

Congressional command.

This is not a situation, to be clear, in which remand to the agency is necessary.

(For one thing, the agency does not request that.) As documented above, the

government’s position is inconsistent with the statute’s text and structure and could

not survive even if it were the rationale the agency had adopted.

16
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page21 of 22

CONCLUSION

For the foregoing reasons, this Court should determine that Jaen was a United

States citizen at birth in accordance with 8 U.S.C. §1401 (a)(7) (1972), and direct the

government to terminate removal proceedings.

Respectfully submitted.

Dated: January 8, 2018

/s/Andrea A. Saenz
Andrea A. Saenz
Brooklyn Defender Services
180 Livingston Street, Suite 300
Brooklyn, NY 11201
(718) 254-0700 x434

Ian Samuel
1648 Massachusetts Ave. #46
Cambridge, MA 02138
(917) 803-8609

17
 Case 17-1512, Document 127, 01/09/2018, 2209917, Page22 of 22

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B), because the brief contains 4,349 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R.

App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2016 in 14 point Garamond.

Dated: January 8, 2018 /s/ Andrea A. Saenz

Andrea A. Saenz, Esq.
Brooklyn Defender Services
180 Livingston St., Suite 300
Brooklyn, NY 11201

18