Anda di halaman 1dari 46

Case 17-1512, Document 64, 09/18/2017, 2127423, Page1 of 46

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

LEVY 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

OPENING BRIEF
FOR THE PETITIONER

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 64, 09/18/2017, 2127423, Page2 of 46

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ........................................................................ 1

ISSUES PRESENTED .............................................................................................. 2

STATEMENT OF THE CASE ............................................................................... 2

A. Jaen’s Family and Birth ................................................................................... 2


B. Jaen’s Removal Proceedings ........................................................................... 3
C. The BIA’s Decision ......................................................................................... 5

SUMMARY OF ARGUMENT ................................................................................ 6

ARGUMENT .............................................................................................................. 8
I. Jorge Boreland is Levy Jaen’s “Parent” ................................................... 9

A. The Text of Former §301........................................................................ 10

1. Jorge Boreland was Jaen’s parent under the common-law meaning


of that term.......................................................................................... 11
2. Jorge Boreland was Jaen’s parent under New York law ................ 13

B. The Structure of the INA Confirms that §301 Does Not Require a
Blood Relationship ................................................................................... 16

C. The Only Court of Appeals to Address This Question Has Concluded


That a Father in Jorge Boreland’s Position is a “Parent” Under Former
§301 ............................................................................................................ 18

II. Jaen Satisfies the Other Requirements for Acquired Citizenship ...... 24

CONCLUSION ........................................................................................................ 26

SPECIAL APPENDIX ..................................................................................... SPA-1

i
Case 17-1512, Document 64, 09/18/2017, 2127423, Page3 of 46

TABLE OF AUTHORITIES

Cases

Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) .............................................................. 17


Abreu v. Colvin, 152 F. Supp. 3d 166 (S.D.N.Y. 2015) ...................................................... 15
Alcarez-Garcia v Ashcroft, 293 F.3d 1155 (9th Cir. 2002) ................................................... 25
Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013)............................................................ 17
Barahona v. Holder, 691 F.3d 349 (4th Cir. 2012) ............................................................... 17
Bueno Gil v. Sessions, No. 15-3134 (2d Cir. March 17, 2017) ............................................ 13
Custis v. Murphy, 511 U.S. 485 (1994).................................................................................. 17
Debra H. v. Janice R., 930 N.E. 2d 184 (N.Y. 2010) .......................................................... 16
Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) ........................................................... 1, 20
Estate of Pizarro, 589 N.Y.S.2d 757 (Sup. Ct. 1992) .......................................................... 15
Ex parte Presse, 554 So. 2d 406 (Ala. 1989) ........................................................................ 12
Gupta v. Att’y Gen of the U.S., 52 F.Supp.3d 677 (S.D.N.Y. 2014)................................... 25
Hynes v. McDermott, 91 N.Y. 451 (1883) ............................................................................. 14
In re Adoption of Sebastian, 879 N.Y.S. 2d 677 (N.Y. Sur. Ct. 2009) ................................. 13
In re Burrus, 136 U.S. 586 (1890) ......................................................................................... 13
In re Estate of Fay, 375 N.E.2d 735 (N.Y. 1978) ................................................................ 14
In re Paternity Proceeding L.M., 6 Misc. 3d 151 (N.Y. Fam. Ct. 2004) ............................... 15
Joan G. v. Robert W., 83 A.D.2d 838 (N.Y. App. Div. 1981) ............................................ 15
Jung v. St Paul Fire Dep’t Relief Ass’n, 27 N.W. 2d 151 (Minn. 1947) ............................... 11
Kelly S. v. Farah M., 139 A.D.3d 90 (N.Y. App. Div. 2016) ............................................. 15
Kowalski v. Wojtkowski, 116 A.2d 6 (N.J. 1955).................................................................. 12
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) .......................................................20, 23, 24
Mansell v. Mansell, 490 U. S. 581 (1989) .............................................................................. 13
Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) ............................................. 19
Matter of Findlay, 170 N.E. 471 (N.Y. 1930)....................................................................... 14
Matter of Luna, 18 I&N Dec. 385 (BIA 1983).................................................................... 13
Matter of M-, 7 I&N Dec. 643 (BIA 1958) ......................................................................... 25
Matter of Matthews, 153 N.Y. 443 47 N.E. 901 (1897) ....................................................... 14
Matter of Tijerina-Villarreal, 13 I&N Dec. 327 (BIA 1969).................................................. 8
Michael H. v. Gerald D., 491 U.S. 110 (1989) ...................................................................... 12
Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006) .................................................... 16
Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015)......................................................... 8
ii
Case 17-1512, Document 64, 09/18/2017, 2127423, Page4 of 46

Murtagh v. Murtagh, 217 A.D.2d 538 N.Y.S. 2d 78, (2nd Dept. 1995) ............................ 14
Neder v. United States, 527 U.S. 1 (1999) .......................................................................... 7, 11
Nguyen v. Holder, 743 F.3d 311 (2d Cir. 2014).................................................................... 13
Nken v. Holder, 556 U.S. 418 (2009)...................................................................................... 6
Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) ............................................. 10, 16, 17, 20
Phong Thanh Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. 2007)........................................... 1, 8
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017) .......................... 11
Richard B. v. Sandra B.B., 209 A.D. 2d 139 (N.Y. App. Div. 1995) ................................. 14
Russello v. United Sates, 464 U.S. 16 (1983) .......................................................................... 17
Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) ...............................................................passim
SEC v. Chenery Corp., 332 U.S. 194 (1947) ....................................................................... 8, 9
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005)...........................................passim
T.P. v. B.P., 41 Misc. 3d 1232(A), 2013 WL 6211262 (Sup. Ct., Kings Cty. 2013) ....... 14
Unified School Dist. v. Newdow, 542 U.S. 1 (2004) ................................................................ 13
United States v. Connolly, 552 F.3d 86 (2d Cir. 2008) .......................................................... 20
Weinong Lin v. Holder, 763 F.3d 244 (2d Cir. 2014) ............................................................. 9
Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d 845 (N.Y. Sup. Ct. 2014) ........................ 14, 15

Statutes & Regulations

8 C.F.R. §1003.1(b)(3) ............................................................................................................ 1


8 U.S.C. § 1227(a)(1)(B) ......................................................................................................... 4
8 U.S.C. §1101(c)(2) ............................................................................................................. 10
8 U.S.C. §1401(a)(7) (1972) ..........................................................................................passim
N.Y. Dom. Rel. Law §24(1) ................................................................................................ 14
New York Penal Law (“NYPL”) § 220.09(1) ................................................................. 3, 4
8 U.S.C. §1252............................................................................................................... 1, 8, 25
8 U.S.C. §1409(a)(1) .................................................................................................10, 17, 22
Wash. Rev. Code §26.26.040(1) .......................................................................................... 18

Other Authorities

ANTONIN SCALIA & BRYAN GARNER, READING LAW 249 (2012) ................................. 11
BLACK’S LAW DICTIONARY (10th ed. 2014) ...................................................................... 10
Br. For Respondent, Scales v. INS, No. 97-70915 (9th Cir. Jan. 12, 1999), 1999 WL
33604759 ............................................................................................................................ 21
iii
Case 17-1512, Document 64, 09/18/2017, 2127423, Page5 of 46

Br. for Respondent, Solis-Espinoza v. Ashcroft, No. 03-70625 (9th Cir. Oct. 16, 2003),
2003 WL 22768187........................................................................................................... 21
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537
(1947).................................................................................................................................. 11
HENRY KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 77 (1971) ......................... 12
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) ............................... 12

iv
Case 17-1512, Document 64, 09/18/2017, 2127423, Page6 of 46

JURISDICTIONAL STATEMENT

Levy Jaen petitions for review of the May 2, 2017 decision of the Board of

Immigration Appeals (“Board” or “BIA”), which ordered him removed from the

United States and determined that he was not a citizen of the United States under

former Section 301(a)(7) of the Immigration and Nationality Act, 8 U.S.C. §1401(a)(7)

(1972). Certified Administrative Record (“CAR”) 3-5. The BIA had jurisdiction over

Jaen’s appeal under 8 C.F.R. §1003.1(b)(3). This Court has jurisdiction over this

petition under 8 U.S.C. §1252(a)(1), which authorizes review of final orders of

removal.

This petition presents questions of law, which this Court has the power to

decide. 8 U.S.C. §1252 (a)(2)(D) (providing for judicial review of Board decisions as to

“constitutional claims or questions of law”); see Duarte-Ceri v. Holder, 630 F.3d 83, 87

(2d Cir. 2010) (noting jurisdiction over claim to United States citizenship raised

through petition for review). In particular, this petition presents a question of

statutory interpretation: what it means to be “born … of parents,” one of whom is a

citizen of the United States, under applicable immigration and family law. Phong Thanh

Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007) (“The phrase ‘questions of law'

encompasses, inter alia, questions of statutory interpretation.”).

This petition was timely filed on May 9, 2017, within thirty days of the final

decision of the BIA. 8 U.S.C. § 1252(b)(1). ECF No. 1.

1
Case 17-1512, Document 64, 09/18/2017, 2127423, Page7 of 46

ISSUE PRESENTED

Was Jorge Boreland, a citizen of the United States who was married to Jaen’s

mother for forty-five years including at the time of Jaen’s birth, his legal parent under

former 8 U.S.C. §1401(a)(7) (1972), thus rendering Jaen a citizen at birth?

STATEMENT OF THE CASE

A. Jaen’s Family and Birth

Levy Jaen’s parents, Jorge and Leticia Rogers Boreland, were married in 1952,

and remained married until Jorge’s death in 1999. CAR 351–52 (marriage certificate),

365 (Boreland’s Social Security death record). Jorge Boreland was born in the Panama

Canal Zone in 1927. CAR 338, 349. He moved to New York in the mid-1950s and

became a lawful permanent resident of the United States by 1956. CAR 336-38.

Shortly after becoming a permanent resident, Jorge successfully petitioned for

immigrant visas for Leticia and their two children at the time. Id. The family lived

most of the time in New York, where Jorge worked as a singer (including in the cast

of the 1957 musical “Jamaica”). CAR 340–42.

In 1961, Jorge became a naturalized United States citizen, see CAR 346-47, and

lived in the United States continuously until the 1970s, making brief trips abroad to

see family in Panama or for his entertainment career. 1 Prior to Jaen’s birth, Jorge and

1As noted before the Board of Immigration Appeals, the government has not
disputed that Jorge Boreland naturalized in 1961. Petitioner received Boreland’s

2
Case 17-1512, Document 64, 09/18/2017, 2127423, Page8 of 46

Leticia Boreland had seven children, three of whom were born in Panama and four of

whom were born in the United States. CAR 322, 326, 328.

In May 1972, Petitioner Levy Jaen was born to Leticia Rogers Boreland while

she was abroad in Panama. CAR 351, 353 (birth certificate). Jaen’s biological father

may be a man named Liberato Jaen, who is named on one of his birth certificates,

although there is no evidence that Liberato Jaen himself has acknowledged this fact or

asserted any parental right or interest. Leticia remained married to Jorge, who

acknowledged and accepted Levy as his own son. CAR 322, 328. A birth certificate

issued to Levy in 1977 lists Jorge Boreland as his father, Leticia Boreland Rogers as

his mother, and gives Levy’s name as “Levy Boreland Rogers.” CAR 355-56. Levy was

raised as the youngest child of Jorge and Leticia Boreland, along with his older

siblings, and his family assumed his that Levy was a United States citizen along with

the rest of them. See CAR at 328-9.

Levy Jaen has lived in New York continuously for nearly thirty years, since he

was a junior high school student in Queens, and is the father of four United States

citizen children. See CAR 233-36, 359, 361.

B. Jaen’s Removal Proceedings

naturalization certificate confirming this fact as part of a production under the


Freedom of Information Act (“FOIA”) while this matter was before the BIA, and is
prepared to produce it if requested. See CAR 9.

3
Case 17-1512, Document 64, 09/18/2017, 2127423, Page9 of 46

In 2008, Jaen was convicted of criminal possession of a controlled substance in

the fourth degree, New York Penal Law (“NYPL”) § 220.09(1), and in 2014, he was

again convicted under NYPL § 220.09(1). CAR 680. In April 2015, while Jaen was

serving his sentence for the latter conviction, Immigration and Customs Enforcement

(“ICE”) served Jaen with a Notice to Appear, charging him with removability under

INA § 237(a)(1)(B) and 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(1)(B) and 1227(a)(2)(B)(i).

CAR 678-80.

While pro se before the Immigration Judge (“IJ”), Jaen raised repeatedly whether

he had acquired United States citizenship through Jorge Boreland, his mother’s

husband, who he had always considered his father. CAR 91-136. The IJ discussed this

claim with Jaen during several hearings, but did not complete the proceedings before

Jaen completed his criminal sentence. Jaen was transferred to ICE custody in May

2016, and his removal proceedings were transferred to the Varick Street Immigration

Court in New York City. CAR 147.

In October 2016, now represented by counsel, Jaen filed a motion to terminate

his removal proceedings with supporting documentation, arguing that he had acquired

citizenship at birth. CAR 303-414. Jaen noted the particular relevance of two decisions

from the Ninth Circuit, finding acquisition of citizenship in circumstances nearly

identical to his. See Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000); Solis-Espinoza v.

Gonzales, 401 F.3d 1090 (9th Cir. 2005).

4
Case 17-1512, Document 64, 09/18/2017, 2127423, Page10 of 46

On December 8, 2016, the Immigration Judge issued a written order denying

the motion and ordering Jaen removed to Panama. CAR 61-66. The IJ did not dispute

that Jorge Boreland was a U.S. citizen who was married to Jaen’s mother at the time

of Jaen’s birth. CAR 65. Instead, the IJ found it dispositive that someone other than

Jorge Boreland was on Jaen’s initial birth certificate, and found that Jaen could not be

the “legitimate son” of Boreland. CAR 64-65. He further found that it was relevant

that the petitioners in Scales and Solis-Espinoza were “raised from birth by their citizen

and noncitizen parents” and that Jaen had spent part of his childhood with his

grandparents, CAR 65, though the IJ had never held an evidentiary hearing to develop

the record on the circumstances of Jaen’s childhood.

C. The BIA’s Decision

Jaen timely appealed to the BIA. Jaen argued again that Boreland was his legal

parent at his birth under long-standing New York and common law, and that the IJ’s

focus on Jaen’s first birth certificate and his findings about the nature of Jaen’s

parent-child relationship with Boreland, especially in the absence of any evidentiary

hearing, were in error. CAR at 6-25.

On May 2, 2017, the BIA dismissed the appeal and affirmed the IJ’s order of

removal. CAR 3-5. The BIA acknowledged that “the respondent’s mother was

married to a United States citizen at the time of the respondent’s birth.” CAR 4. The

agency observed that Boreland was “not the respondent’s biological father,” and

acknowledged that the Ninth Circuit had concluded that the acquired-citizenship

5
Case 17-1512, Document 64, 09/18/2017, 2127423, Page11 of 46

statute “does not require a blood relationship.” Id. Nonetheless, the Board rejected

Jaen’s claim. The agency’s reasoning, in full, was a single paragraph:

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. Inasmuch as those facts are not present here, we are not so
persuaded. This case arises in the jurisdiction of the Second Circuit and we are
required to apply Second Circuit law. Moreover, the Ninth Circuit’s reasoning
does not distinguish between situations where the biological father is listed as
the parent on the birth certificate (as in this case) and situations where there is
no evidence of any non-biological connection between the biological father and
the child (as in the case of Solis-Espinoza [v. Gonzales, 401 F.3d 1090 (9th Cir.
2005)]).

CAR 4. The agency further concluded that events arising after Jaen’s birth were

irrelevant because the statute is concerned exclusively with citizenship “at birth.” Id.

(emphasis in original).

This petition for review timely followed. Jaen moved for a stay of removal

pending the resolution of this petition for review, arguing that he was likely to succeed

on appeal and otherwise met the standards of Nken v. Holder, 556 U.S. 418 (2009).

ECF No. 17. Over the government’s opposition, ECF No. 27, this Court entered a

stay of removal on August 8, 2017, ECF No. 52.

SUMMARY OF ARGUMENT

At the time of Jaen’s birth, a person born outside the United States was a

citizen at birth if (1) they were born “of parents one of whom is an alien, and the

other a citizen of the United States,” and (2) the citizen parent “was physically present

6
Case 17-1512, Document 64, 09/18/2017, 2127423, Page12 of 46

in the United States or its outlying possessions for a period or periods totaling not less

than ten years, at least five of which were after attaining the age of fourteen years.” 8

U.S.C. §1401(a)(7) (1972). Jaen satisfies those requirements.

First, Jorge Boreland was Jaen’s “parent.” Because the INA does not define the

term “parent,” the term is presumed to have its settled meaning at common law. Neder

v. United States, 527 U.S. 1, 23 (1999). The term “parent” had a well-settled definition

at common law, and included the husband of a woman who gave birth to a child—

even when that child had no biological relationship to her husband. The State of New

York retains that traditional rule, meaning that Boreland (as a resident of New York)

was regarded by his own State as Jaen’s parent the day he was born. And the structure

of the INA confirms this reading of the text: former Section 301 makes no mention

of a blood relationship, which other provisions of the INA relating to citizenship at

birth do. For these reasons, the only court of appeals to consider whether a person in

Boreland’s position is a “parent” for purposes of former Section 301 has, on this

basis, repeatedly held that the answer is yes. See, e.g., Scales v. INS, 232 F.3d 1159, 1164

(9th Cir. 2000); Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).

Second, assuming Boreland was Jaen’s parent, then the other requirements of

Section 301 are easily satisfied, and the agency did not conclude to the contrary.

Boreland became a United States citizen in 1961, well prior to Jaen’s birth, and he was

physically present in the United States for ten years prior to Jaen’s birth. If, however,

this Court regards the other requirements of former Section 301 as in doubt, the

7
Case 17-1512, Document 64, 09/18/2017, 2127423, Page13 of 46

proper course would be to transfer this proceeding to the Eastern District of New

York—not back to the agency. See 8 U.S.C. §1252 (b)(5)(B).

ARGUMENT

Where, as here, “the petitioner claims to be a national of the United States” and

“no genuine issue of material fact about the petitioner’s nationality is presented,” this

Court decides the citizenship claim de novo. Morales-Santana v. Lynch, 804 F.3d 520, 525

(2d Cir. 2015), aff’d in relevant part sub nom Sessions v. Morales-Santana, No. 15-1191 (S. Ct.

June 12, 2017) (quoting 8 U.S.C. § 1252 (b)(5)(A)). See also Phong Thanh Nguyen, 501

F.3d at 111 (“We apply de novo review to questions of law raised in petitions for review

of removal orders”). As the Board acknowledged, the “applicable law for transmitting

citizenship to a child born abroad when one parent is a U.S. citizen is the statute that

was in effect at the time of the child’s birth.” Scales v. INS, 232 F.3d 1159, 1163 (9th

Cir. 2000). And the BIA has long held that removal proceedings should be terminated

where an individual presents a mere “preponderance of credible evidence sufficient to

rebut the presumption of alienage which attaches by reason of his birth” abroad.

Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969).

Further, when a reviewing court is considering agency action, “the propriety of

such action” may be sustained “solely by the grounds invoked by the agency.” SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947). “If those grounds are inadequate or improper,

the court is powerless to affirm the administrative action by substituting what it

8
Case 17-1512, Document 64, 09/18/2017, 2127423, Page14 of 46

considers to be a more adequate or proper basis.” Id. “To do so would propel the

court into the domain which Congress has set aside exclusively for the administrative

agency.” Id. This principle applies to immigration cases just as it applies to other cases.

See, e.g., Weinong Lin v. Holder, 763 F.3d 244, 249 (2d Cir. 2014) (noting that when “the

BIA has not presented us” with certain arguments, “we express no view” on them). If

the order below is to be sustained, therefore, it must be sustained only on the grounds

invoked by the agency.

At the time of Jaen’s birth, former INA §301(a)(7) provided that a person born

outside the United States was a citizen at birth if (1) they were born “of parents one

of whom is an alien, and the other a citizen of the United States,” and (2) the citizen

parent “was physically present in the United States or its outlying possessions for a

period or periods totaling not less than ten years, at least five of which were after

attaining the age of fourteen years.” 8 U.S.C. §1401(a)(7) (1972). For the reasons set

forth below, Jaen satisfies those requirements. He was born to a parent, Jorge

Boreland, who was a United States citizen at the time of Mr. Jaen’s birth. And

Boreland was physically present in the United States for the required period. The

order of the Board of Immigration Appeals is therefore contrary to law, and this

Court should set it aside.

I. Jorge Boreland is Levy Jaen’s “Parent”

On the day Levy Jaen was born, Jorge Boreland was his legal parent for the

purposes of former §301. The term “parent” had a well-settled definition at common

9
Case 17-1512, Document 64, 09/18/2017, 2127423, Page15 of 46

law, and included the husband of a woman who gave birth to a child—even when that

child had no biological relationship to her husband. The State of New York retains

the traditional rule, meaning that Boreland (as a resident of New York) was regarded

by his own State as Jaen’s parent the day he was born.

The structure of the INA confirms this reading of the text. Section 301 makes

no mention of a blood relationship—which other provisions of the INA do. See 8

U.S.C. §1409(a)(1).

The only court of appeals to consider whether a person in Boreland’s position

is a “parent” for purposes of former Section 301 has, on this basis, repeatedly held

that the answer is yes. See, e.g., Scales v. INS, 232 F.3d 1159, 1164 (9th Cir. 2000); Solis-

Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).

A. The Text of Former §301

“When interpreting a statutory provision, we begin with the language of the

statute.” Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). Although the

Immigration and Nationality Act contains an extensive definitional section, it contains

no definition of the word at issue here—“parent.” See 8 U.S.C. §1101(c)(2) (providing

only that the term “parent” includes “in the case of a posthumous child,” a “deceased

parent”). In ordinary legal usage, “parent” defines a legal, rather than a biological,

relationship. BLACK’S LAW DICTIONARY (10th ed. 2014) (“The lawful father or

mother of someone”). (By contrast, the term “biological parent,” “genetic parent,” or

“birth parent” is used to describe a strictly biological relationship. Id.)

10
Case 17-1512, Document 64, 09/18/2017, 2127423, Page16 of 46

The term “parent,” moreover, has a well-settled definition at common law and

under New York law. The word, “transplanted from … the common law” and state-

level “legislation,” therefore “brings the old soil with it.” Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947). And under

those well-settled definitions, a man who is married to a woman that gives birth to a

child is by definition that child’s parent.

1. Jorge Boreland was Jaen’s parent under the common-law meaning


of that term

To begin, it is presumed “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). That is in accord with the general rule that “statutes will not be interpreted as

changing the common law unless they effect change with clarity.” ANTONIN SCALIA &

BRYAN GARNER, READING LAW 249 (2012). The “age-old principle” that “words

undefined in a statute are to be interpreted and applied according to their common-

law meanings” includes family-law terms like “child” (or, here, parent). Id. at 251. See

Jung v. St Paul Fire Dep’t Relief Ass’n, 27 N.W. 2d 151, 154 (Minn. 1947) (applying this

principle to the term “child”). Therefore, where the text of a statute “evidences no

intent to deviate from common law rules,” then this Court must apply “the common

law definition of the term when interpreting the act.” Reyes v. Lincoln Automotive

Financial Services, 861 F.3d 51, 56–57 (2d Cir. 2017).

11
Case 17-1512, Document 64, 09/18/2017, 2127423, Page17 of 46

Under the common-law definition of the term, a man who is married to a

child’s mother when the child is born is that child’s parent, and Boreland is therefore

Jaen’s. A “fundamental principle of the common law” was that, when a man and

woman were married and the woman gave birth to a child, that man was the child’s

legitimate parent. Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989) (plurality

opinion by Scalia, J.). This principle was grounded in an aversion to “declaring

children illegitimate” and thereby “depriving them of rights” they would otherwise

have. Id. at 125. This principle, known as pater est quem nuptiae demonstrant (literally, “the

nuptials show who is the father”) is often described as “one of the strongest

presumptions 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)). See also

Kowalski v. Wojtkowski, 116 A.2d 6, 261 (N.J. 1955) (“Under the common law,” a child

“born or conceived in lawful wedlock” is the legitimate child of his mother and her

husband).

Therefore, a case like this one—where “the married mother … brings into the

world a child of someone not her husband”—is “not a difficult [one].” HENRY

KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 77 (1971). The husband is the

parent of the child. See also HARRIS NICHOLAS, A TREATISE ON THE LAW OF

ADULTURINE BASTARDY 1 (1836) (“The Common Law, however, adopted as a

fundamental principle, the maxim of civilians, that marriage is the proof of paternity.”). At

12
Case 17-1512, Document 64, 09/18/2017, 2127423, Page18 of 46

common law, in other words, a “parent” was created by one of “two events”: (1) “a

child’s birth to its mother,” or (2) “the mother’s marriage to a man.” In re Adoption of

Sebastian, 879 N.Y.S. 2d 677, 679 (N.Y. Sur. Ct. 2009). Because it is undisputed that

Jorge Boreland was married to Jaen’s mother at the time of his birth, Boreland was

Jaen’s “parent” as the common law understood that term.

2. Jorge Boreland was Jaen’s parent under New York law

When interpreting the domestic-relations terms of the INA, federal courts

borrow state-law definitions. In Nguyen v. Holder, for example, this Court (in accord

with the position of both parties) analyzed whether “New York law” regarded the

petitioner’s marriage as “void for incest.” 743 F.3d 311, 314 (2d Cir. 2014). See also

Bueno Gil v. Sessions, No. 15-3134 (2d Cir. March 17, 2017) (analyzing whether the

petitioner qualified as a “child” under New York law, to evaluate whether he was a

citizen). See also Matter of Luna, 18 I&N Dec. 385, 386 (BIA 1983) (existence of a

valid marriage is determined by law of place of celebration). That is in accord with the

traditional rule that the “whole subject of the domestic relations of husband and wife,

parent and child” belongs “to the laws of the States and not to the laws of the United

States.” In re Burrus, 136 U.S. 586, 593–94 (1890). See also Mansell v. Mansell, 490 U. S.

581, 587 (1989) (“[D]omestic relations are preeminently matters of state law”); Elk

Grove Unified School Dist. v. Newdow, 542 U.S. 1, 13 (2004) (“[I]n general it is appropriate

for the federal courts to leave delicate issues of domestic relations to the state

courts”).

13
Case 17-1512, Document 64, 09/18/2017, 2127423, Page19 of 46

Thus, in Scales and Solis-Espinoza, the Ninth Circuit applied the relevant

domestic relations laws of Washington and California, respectively, to reach the

results that the petitioners had acquired U.S. citizenship at birth. Scales, 232 F.3d at

1163-64; Solis-Espinoza, 401 F.3d at 1093-94. Respondent has never suggested that the

Ninth Circuit was wrong to do so or argued that there is a source for the definition of

“parent” in §301 outside the applicable state law. Indeed, in dismissing Jaen’s appeal,

the BIA did not define “parent” at all.

Under New York law, where Boreland was a long-time resident and where Jaen

came to live, CAR 326, 328, 332, a child born to a married couple is the “legitimate

child” of both parents. N.Y. Dom. Rel. Law §24(1). New York’s public policy

“strongly favors the legitimacy of children,” Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d

845, 848 (N.Y. Sup. Ct. 2014), and the “presumption that a child born to a marriage is

the legitimate child of both parents is one of the strongest and persuasive known” to

the State’s law, In re Estate of Fay, 375 N.E.2d 735 (N.Y. 1978). See also Matter of

Findlay, 170 N.E. 471 (N.Y. 1930); Hynes v. McDermott, 91 N.Y. 451, 458 (1883); Matter

of Matthews, 153 N.Y. 443, 447, 47 N.E. 901 (1897); Murtagh v. Murtagh, 217 A.D.2d

538, 539, 629 N.Y.S. 2d 78, (2nd Dept. 1995); T.P. v. B.P., 41 Misc. 3d 1232(A), 2013

WL 6211262 (Sup. Ct., Kings Cty. 2013).

This presumption, to be sure, is not inviolable. But it “will not fail unless

common sense and reason are outraged by a holding that it abides.” Richard B. v.

Sandra B.B., 209 A.D. 2d 139, 142 (N.Y. App. Div. 1995) (internal quotation marks

14
Case 17-1512, Document 64, 09/18/2017, 2127423, Page20 of 46

and citations omitted). For example, a woman’s marriage to a man establishes that

man’s paternity even if—as here—the mother lists another man as the father in

hospital records or on the child’s birth certificate. Estate of Pizarro, 589 N.Y.S.2d 757,

759 (Sup. Ct. 1992). The presumption is not rebutted even when the couple has

temporarily separated when the child is conceived and born. Joan G. v. Robert W., 83

A.D.2d 838, 839 (N.Y. App. Div. 1981) (noting “strong presumption that the subject

child was born legitimately of petitioner’s marriage, even though petitioner was

separated from her husband”). And the presumption holds even when it is certain that

the child is not biologically related to his mother’s spouse, as it is in a same-sex

relationship. Kelly S. v. Farah M., 139 A.D.3d 90, 101 (N.Y. App. Div. 2016) (same-sex

spouse who did not give birth to the child “is presumed to be the natural parent of

[the children] by virtue of the parties’ [registered domestic partnership and

subsequent] marriage”); see also Wendy G-M v. Erin G-M, 985 N.Y.S. at 848 (same).

Even when the presumption is rebutted, a man’s status as a “parent” may only

be terminated if the child, a putative legal or biological parent, or an individual or

entity standing in their stead successfully petitions a State court to rebut the

presumption of legitimacy. See, e.g., Richard B., 209 A.D. 2d at 141 (petition by non-

biological former spouse to deny parentage); In re Paternity Proceeding L.M., 6 Misc. 3d

151, 152 (N.Y. Fam. Ct. 2004) (petition by biological parent to declare the unmarried

biological parent as a “parent” in lieu of non-biological former spouse); cf. Abreu v.

Colvin, 152 F. Supp. 3d 166, 175-76 (S.D.N.Y. 2015) (reversing the Commissioner of

15
Case 17-1512, Document 64, 09/18/2017, 2127423, Page21 of 46

Social Security’s denial of benefits to the deceased non-biological spouse’s children

who were born during the course of his marriage to their biological mother, even

where DNA evidence confirmed their non-biological relationship). No such action

has ever been undertaken by Jaen, Jorge Boreland, or Jaen’s putative biological father.

Quite to the contrary: Jaen moved to the United States and was raised as Boreland’s

child. CAR 322, 328, 358-59.

On the day Mr. Jaen was born, he therefore became—by operation of New

York law—the “legitimate child” of both his mother and her husband, Boreland. It

makes no difference that Jorge Boreland and Jaen have no biological relationship.

Even a spouse with no “biological connection” to the child is a parent so long as

there is a “valid legal union at the time of the child’s birth.” Miller-Jenkins v. Miller-

Jenkins, 912 A.2d 951, 967, 970 (Vt. 2006); see also Debra H. v. Janice R., 930 N.E. 2d

184 (N.Y. 2010) (approving Miller-Jenkins). The lack of a biological relationship

between Jorge Borland and Mr. Jaen is therefore irrelevant.

B. The Structure of the INA Confirms That §301 Does Not Require a Blood
Relationship

A statute’s meaning must be determined by “looking to the statutory scheme as

a whole and placing the particular provision within the context of that statute.”

Nwozuzu, 726 F.3d at 327. In particular, when “Congress includes particular language

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

generally presumed that Congress acts intentionally and purposely in the disparate

16
Case 17-1512, Document 64, 09/18/2017, 2127423, Page22 of 46

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

Nwozuzu, 726 F.3d at 327–28 (applying this principle in a derivative-citizenship case).

The Board has itself invoked this rule in the interpretation of the INA. See, e.g.,

Annachamy v. Holder, 733 F.3d 254, 261 (9th Cir. 2013) (overruled on other grounds by

Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014)) (crediting the Board’s view that the

explicit presence of an “involuntariness” exception to the membership-in-a-

totalitarian-party bar negates an implicit such exception to the material-support-for-

terrorism bar); Barahona v. Holder, 691 F.3d 349, 354–55 (4th Cir. 2012) (same).

The text of former §301 contains “no requirement of a blood relationship,”

Scales, 232 F.3d at 1164. Other portions of the INA, by contrast, do. When a child is

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

relationship,” 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 Mr. 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 §301, “it knew how to

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

Because Congress included no requirement of a blood relationship between parents

like Jorge Boreland and children like Jaen, that decision must be given effect.

17
Case 17-1512, Document 64, 09/18/2017, 2127423, Page23 of 46

C. The Only Court of Appeals to Address This Question Has Concluded


That a Father in Jorge Boreland’s Position is a “Parent” Under Former
§301

The Ninth Circuit is the only court of appeals to address the question, and has

confirmed that a father recognized as a parent by state law is therefore, also, a

“parent” for purposes of former §301, regardless of whether or not that parent has a

blood relationship with the child. In Scales, just as here, the petitioner was born abroad

to a non-citizen mother, who was married to an American citizen. 232 F.3d at 1161–

62. Just as here, Scales had no biological relationship to his mother’s husband. Id. But

just as here, the law of the state in which Scales’ father resided (there, Washington)

had codified the traditional “presumption that a man is the natural father of a child

born during marriage.” Id. at 1163 (citing Wash. Rev. Code §26.26.040(1)). The Ninth

Circuit had no trouble concluding that Scales was a citizen at birth:

[Former Section 301] requires only that Petitioner be “born ... of parents,” one
of whom is a U.S. citizen, in order to acquire citizenship. The record is
uncontroverted that Petitioner was born to Topaz and Scales during their
marriage. There is no requirement of a blood relationship between Petitioner
and his citizen father, as there is for an illegitimate child. We therefore hold that
Petitioner acquired citizenship at birth…

Id. at 1166.2

2
The Scales court also explained in detail why general statements in the Foreign Affairs
Manual that acquisition of U.S. citizenship always requires a “blood relationship” are
not dispositive, and the government did not press this theory below. The FAM is not
an agency interpretation of former INA §301 specifically, and does not warrant
Chevron deference because it is not the result of formal agency rulemaking, and at any
rate it is the Department of Justice, not the Department of State, that is charged with

18
Case 17-1512, Document 64, 09/18/2017, 2127423, Page24 of 46

Illustrating the point even more forcefully, in Solis-Espinoza v. Gonzales, the

Ninth Circuit held that the petitioner had acquired citizenship at birth because his

biological, non-citizen father was married to an American woman who was not his

biological mother—that is, his father’s citizen wife had not given birth to him. 401 F.3d

1090 (9th Cir. 2005). (Solis-Espinoza had been abandoned by his birth mother and

raised by his father and his wife.) Just as here, under the law of California, his father’s

marriage rendered his wife Solis-Espinoza’s legal parent. And the Ninth Circuit—

applying Scales—concluded that he was therefore “entitled to be recognized as a

citizen.” Id. at 1094. The INA, the court observed, was “intended to keep families

together,” and so should be “construed in favor of family units and the acceptance of

responsibility by family members.” Id. The rule of Scales and Solis-Espinoza suffices to

decide this case.

This Court has not yet had an occasion to resolve this question. And the Fifth

Circuit has declined to reach it in the only other case of which counsel is aware. See

Marquez-Marquez v. Gonzales, 455 F.3d 548, 557-60 (5th Cir. 2006) (declining to decide

whether to adopt the reasoning of Scales and Solis-Espinoza, because the petitioner’s

U.S. citizen stepfather had not been married to her mother at the time of her birth).

But this Court has disapproved one attempt by the government to define “father”

narrowly, in a different acquired citizenship case. See United States v. Connolly, 552 F.3d

interpreting the citizenship statute for a person in the United States. Scales, 232 F.3d at
1165-66.

19
Case 17-1512, Document 64, 09/18/2017, 2127423, Page25 of 46

86, 88-91 (2d Cir. 2008). See also Nwozuzu, 726 F.3d at 333 (concluding that BIA’s

interpretation of the derivative-citizenship statute was “inconsistent with the text of

the statute”); Duarte-Ceri v. Holder, 630 F.3d 83, 88-89 (2d Cir. 2010) (refusing to give

effect to the government’s proposed “legal fiction” where it would deny “the most

precious right” of citizenship).

This Court has also recognized that the Second and Ninth Circuits are

distinctive in their heavy immigration caseloads. See Lora v. Shanahan, 804 F.3d 601,

615–16 (2d Cir. 2015) (noting “the Second and Ninth Circuits have been

disproportionately burdened by a surge in immigration appeals and a corresponding

surge in the sizes of their immigration dockets”). A division of authority on a question

of immigration law between the two would therefore be particularly disruptive and

intolerable.

In its decision, the BIA did not conclude that Scales and Solis-Espinoza were

wrongly decided. Rather, the BIA reasoned (CAR 4) that the Ninth Circuit had not

distinguished between “situations where the biological father is listed as the parent on

the birth certificate (as in this case) and situations where there is no evidence of any

non-biological connection between the biological father and the child (as in the case

of Solis-Espinoza v. Gonzales)3.” The agency did not cite any authority for, or explain,

3Compounding the difficulty of understanding the BIA’s distinctions, Solis-Espinoza is


the case in which the petitioner derived U.S. citizenship through his non-biological
U.S. citizen mother, not his father, so the meaning of their citation to that case is
unclear. The BIA did not explain why Jaen’s biological father being listed on one of

20
Case 17-1512, Document 64, 09/18/2017, 2127423, Page26 of 46

the proposition that a biological parent’s presence on a foreign birth certificate

matters in determining a person’s parents at birth. The lack of a biological connection

was irrelevant in both Scales and Solis-Espinoza: In both cases, the evidence was quite

clear that the citizen parent had no biological relationship to the petitioner: Scales’

father signed an affidavit thus attesting, 232 F.3d at 1161, and in Solis-Espinoza, the

petitioner had been born to another woman, 401 F.3d at 1090.

Nothing, moreover, in either Scales or Solis-Espinoza turns on the contents of a

birth certificate. In fact, although the government’s brief in Solis-Espinoza complained

that “a birth certificate which lists” anyone other than the petitioner’s biological

mother would not be “accurate,” Br. for Respondent, Solis-Espinoza v. Ashcroft, No.

03-70625 (9th Cir. Oct. 16, 2003), 2003 WL 22768187, the Solis-Espinoza opinion

mentions the birth certificate only once in passing, and nothing in the court’s analysis

turned on the matter. 401 F.3d at 1090. Scales says nothing at all about the petitioner’s

birth certificate or who was listed on it. 232 F.3d at 1161–62, though the

government’s brief argued that the petitioner’s birth certificate actually demonstrated

that his citizenship claim was “frivolous,” because it showed that he “was born after a

full term 42-week pregnancy,” meaning that his mother was “twelve weeks pregnant”

when she met his citizen father. Br. For Respondent, Scales v. INS, No. 97-70915 (9th

Cir. Jan. 12, 1999), 1999 WL 33604759. Moreover, in Solis-Espinoza, just as here, the

his birth certificates constituted a “non-biological connection” that is relevant to the


definition of “parent” in §301(a)(7).

21
Case 17-1512, Document 64, 09/18/2017, 2127423, Page27 of 46

identity of the child’s biological mother was known: the opinion gives her name as

“Maria Luisa Cardoza,” identifies her as a Mexican citizen, and describes her as having

abandoned the petitioner at birth. Id. at 1091–92. Why it would make any difference if

she was listed on a birth certificate, the agency did not say.

Similarly, the decision of the immigration judge here (CAR 64-65) distinguished

Scales and Solis-Espinoza on the grounds that the petitioners in those cases were “raised

from birth by their citizen and noncitizen parents.” (Jaen spent his early years with his

grandparents in Panama. CAR 322, 328.) But the IJ’s focus on the nature of the

relationship between Jorge Boreland and Mr. Jaen after his birth was inappropriate.

Former §301 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. As if that were not clear

enough, the statute begins by providing that the “following shall be nationals and

citizens of the United States at birth.” Id. (emphasis added). It then lists several

categories of people, one of which (people born to abroad to one citizen and one

non-citizen parent) covers Mr. Jaen. Nothing in former §301 calls for an evaluation of

circumstances after the person’s birth and 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).

As argued above, that difference in text and structure must be given a

difference in meaning. Events after Mr. Jaen’s birth are thus irrelevant to whether he

22
Case 17-1512, Document 64, 09/18/2017, 2127423, Page28 of 46

was a citizen on the day he was born. Put differently, it must be possible under §301

to answer the question “is this child an American citizen?” on the day that child is born.

(What if a passport application were made for the child on that very day, for

example?) And on the day the child is born, it is impossible to evaluate anything other

than the factors listed in the text. The BIA, in its decision, appeared to acknowledge

as much. CAR 4.

Finally, the distinction the agency drew between this case and Scales is

unpersuasive on its own terms. What the agency appears to have contemplated is a

freewheeling all-things-considered inquiry as to the nature of the relationship between

a young child and his citizen parent—to put it in the BIA’s terms, an inquiry into

whether there is any “non-biological” connection between a child and his parent. The

BIA did not provide any definition of “parent”, sources of authority, or standards to

guide this inquiry. While that “case-by-case approach might be workable in circuits

with comparatively small immigration dockets,” in places like the Second and Ninth

Circuits, “predictability and certainty are considerations of enhanced importance.”

Lora, 804 F.3d at 616. The rule adopted by agency here, by contrast, will guarantee

“pervasive inconsistency and confusion.” Id. at 615.

As human experience readily demonstrates, evaluating the closeness and extent

of a parent-child “connection” is not easy, and every case will present new and

unanswerable questions. What if Jaen had moved to the United States when he was 5

years old? Good enough? How about 13 years old? What if he had spoken to Jorge

23
Case 17-1512, Document 64, 09/18/2017, 2127423, Page29 of 46

Boreland every day on the phone? Once a week? Does it matter how long the calls

were? What if he had visited often, but not moved permanently until adulthood? Are

summers with his father good enough, or must he have fatherly guidance on his

homework during the school year, too? Decisions about citizenship should not turn

on the answers to questions like that. These are matters of grave and “real-life

consequences for immigrants and their families.” Id. at 616. The value of a law of rules

is nowhere more valuable than here.

II. Jaen Satisfies the Other Requirements for Acquired Citizenship

If Jorge Boreland is Jaen’s parent, then he is entitled to citizenship as the other

requirements of former §301 are neither in doubt nor contested by the government.

First, Jorge Boreland became a U.S. citizen on January 30, 1961. The Boreland family

has located an early passport of Jorge Boreland’s issued in 1975, which contains a

handwritten “Petition” and number and the date “1/30/61,” and counsel has now

obtained both written confirmation from government counsel that this is correct and

the original documents indicating that it is so. See CAR 9 n.1, 346-47.

In addition, Jorge Boreland was physically present in the United States or its

outlying possessions for ten years or more, including five years after the age of

fourteen. He began living in the U.S. legally in 1955 and worked as a singer and

entertainer in New York while fathering and raising four children who were born in

New York between 1957 and 1962. See CAR 322, 328, 340-42 (Broadway cast

recording notes showing Mr. Boreland was in the cast of the 1957 musical “Jamaica”).

24
Case 17-1512, Document 64, 09/18/2017, 2127423, Page30 of 46

Mr. Boreland appears to have resided in New York or Puerto Rico through the 1970s,

with occasional brief trips to Panama for family reasons or to other countries for his

entertainment career. See CAR 322, 326, 328. Courts have not required day-by-day

accountings of time to find this requirement satisfied. See Matter of M-, 7 I&N Dec.

643, 645 (BIA 1958) (adding two periods of U.S. residence together to reach the

required 10 years); Alcarez-Garcia v Ashcroft, 293 F.3d 1155, 1158 (9th Cir. 2002)

(residence requirements met even where father lived in U.S. 9 months a year and

visited Mexico the other 3 months); Gupta v. Att’y Gen of the U.S., 52 F.Supp.3d 677,

683 (S.D.N.Y. 2014) (petitioner proved 10-year requirement by preponderance of the

evidence despite pages missing from father’s passport).

If, however, this Court regards the other requirements of former Section 301 as

in doubt, the proper course would not be to remand to the agency. If a petitioner

“claims to be a national of the United States and the court of appeals finds that a

genuine issue of material fact about the petitioner’s nationality is presented,” then this

Court must “transfer the proceeding to the district court of the United States for the

judicial district in which the petitioner resides for a new hearing on the nationality

claim and a decision on that claim as if an action had been brought in the district

court.” 8 U.S.C. §1252 (b)(5)(B). Jaen resides in Queens County, New York, CAR

559, and the appropriate district court would therefore be the Eastern District of New

York.

25
Case 17-1512, Document 64, 09/18/2017, 2127423, Page31 of 46

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.

Dated: September 18, 2017

Respectfully submitted,

/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

26
Case 17-1512, Document 64, 09/18/2017, 2127423, Page32 of 46

CERTIFICATE OF COMPLIANCE

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

32(a)(7)(B), because the brief contains 6,794 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 2010 in 14 point Garamond.

Dated: September 18, 2017 /s/ Andrea A. Saenz


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

27
Case 17-1512, Document 64, 09/18/2017, 2127423, Page33 of 46

JAEN V. SESSIONS, NO. 17-1512

SPECIAL APPENDIX

Orders Under Appeal

Decision and Order of the Board of Immigration Appeals, May 2, 2017……SPA-1

Decision and Order of the Immigration Judge, Dec. 8, 2016………………..SPA-5

Text of Relevant Statutes

Immigration and Nationality Act §301(a)(7) (1972)………………………….SPA-11

Immigration and Nationality Act §309(a)……………………………………SPA-12

N.Y. Domestic Relations Law §24(1)………………………………………..SPA-13


Case 17-1512, Document 64, 09/18/2017, 2127423, Page34 of 46
U.S. Departm ent of .Justice

Executive Office for T111migrat ion Review

Board ofImmigrat ion Appeals


Office of the Clerk

5107 l easburg Pike. Suite won


rolls Church. l'lrg/nia 2204 I

Saenz, Andrea A OHS/ICE Office of Chief Counsel - NYD


Brooklyn Defender Services 201 Varick, Rm. 1130
180 Livingston St., Suite 300 New York, NY 10014
Brooklyn, NY 11201

Name: JAEN, LEVY ALBERTO A 076-187-995

Date of this notice: 5/2/2017

Enclosed is a copy of the Bourd's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members :
Pauley, Roger

Userteam : Docket

SPA-001
Case 17-1512, Document 64, 09/18/2017, 2127423, Page35 of 46
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls cl~ch, Virginia 22041

File: A076 187 995 - New York, NY Date:

In re: LEVY ALBER TO JAEN MAY - 2 2017

IN REMOV AL PROCE EDING S

APPEA L

ON BEHAL F OF RESPO NDENT : Andrea A. Saenz, Esquire

ON BEHAL F OF DHS: Kamephis Perez


Assistant Chief Counsel

CHARG E:

Notice: Sec. 237(a)( l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -


In the United States in violation of law

Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] -


Convict ed of controlled substan ce violation

APPLIC ATION : Termina tion

The respond ent appeals the Immigra tion Judge's Decemb er 8, 2016, decision ordering
him
removed to Panama. The appeal will be dismissed.

We review for clear error the findings of fact, including the determination of credibili
ty,
made by the Immigration Judge. 8 C.F.R. § I 003.l(d)(3)(i). We review de novo all other
issues,
includin g whether the parties have met the relevant burden of proof and issues of
discretion.
8 C.F.R. § 1003 .1 (d)(3 )(ii).

The respond ent's sole contenti on on appeal is that he acquired United States citizens
hip at
the time of his birth by virtue of his relationship to the lawful spouse of his mother,
who was
a United States citizen at the time of his birth (Respon dent's Br. at 4-17). The respond
ent has
acknow ledged that he was born in Panama. A person born abroad who claims to be
a citizen
of the United States has the burden to establish such claims. See Matter of Rodriguez-Tejed
or,
23 I&NDe c. 153, 164 (BIA20 01) (citingM attero/L eyva, 16l&N Dec.18 8, 119(BI
A 1977));
Matter of Tijerina-Villareal, 13 I&N Dec 327 330 (BIA 1969).

We have carefully considered the respond ent's claim, and like the Inunigration Judge
who
presided over the respond ent's case, we conclude that the respondent did not demonstrate
that he
is a United States citizen (I.J. at 4-6). The governing law in this case is the law in effect
on the
date of the respond ent' s birth. 1 Former section 301(a)(7) of the Immigration and Nationa
lity Act
1
The respond ent was born in Panama on May 12, 1972.

SPA-002
Case 17-1512, Document 64, 09/18/2017, 2127423, Page36 of 46

A076 187 995

(redesignated in 1978 as section 301(g)) is the applicable law for transmitting citizenship to a
child born outside the geographical limits of the United States and its outlying possessions when
one parent is a United States citizen.2

The issue in this case arises from the fact that although the respondent's mother was married
to a United States citizen at the time of the respondent's birth, the respondent's mother's husband
is not the respondent's biological father. The respondent submitted a birth certificate which lists
the respondent as the "Child of' the biological father, not the "Child of" the respondent's
mother' s husband (Respondent's Motion, Tab Lat 23). We further note that the birth certificate
shows that respondent was given his biological father ' s surname. The respondent also submitted
a reissued birth certificate dated January 28, 1977, that lists the respondent as the "son of' the
respondent's mother's husband and states that the certification can only be used for scholastic
purposes (I.J. at 3~ Respondent's Motion, Lab M). The reissued birth certificate replaces the
respondent's biological father's surname with the respondent's mother's husband' s surname
(I.J. at 3 (noting that the respondent's mother's husband gave him his last name)).

The respondent argues that his mother's husband qualifies as his parent for purposes of
301(a)(7) because 30l(a)(7) does not require a blood relationship (Respondent's Brief at 5-6). In
support, he references two decisions from the Ninth Circuit. See Solis-Espinoza v. Gonzales,
401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159 (9th Cir. 2000).

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 respondenfs argument. Inasmuch as those
facts are not present here, we are not so persuaded. This case arises in the jurisdiction of the
Second Circuit and we are required to apply Second Circuit law. Moreover, the Ninth Circuit's
reasoning does not distinguish between situations where the biological father is listed as the
parent on the birth certificate (as in this case) and situations where there is no evidence of any
non-biological connection between the biological father and the child (as in the case of Solis-
Espinoza v. Gonzales, supra). See id.

Former section 30l(a)(7) of the Act applies only to those who have acquired United States
citizenship at birth. Though the respondent submitted a reissued birth certificate, labeled for
"scholastic purposes," that cites his mother' s husband as his parent, the document was issued
several years after the respondent's birth, an_d, thus, is insufficient to establish a parental
relationship at birth. In regard to the declarations from family members stating that the
respondent's mother's husband raised the respondent, we agree with the Immigration Judge' s
determination that those documents do not meet the respondent's burden of establishing by a
preponderance of the evidence that his mother' s husband was his parent for 30l(a)(7) purposes
at birth. Thus, we conclude that the respondent did not demonstrate that he is a United States

2 The statute requires a showing that the United States citizen parent had been, prior to the
child ' s birth, physically present in the United States or its outlying possessions for a period
totaling 10 years, at least 5 of which were after attaining the age of 14. Former section 30 l(a)(7)
of the Act.

2
SPA-003
Case 17-1512, Document 64, 09/18/2017, 2127423, Page37 of 46
A076 187 995

citizen (I.J. at 6). See also Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967) (stating
that doubts should be resolved against the person claiming citizenship).

We note that the respondent has not contested that he is removable as charged and made no
applications for relief before the Immigration Judge. As this was the sole challenge to the
Im.migration Judge's decision, we deem all other arguments waived. Accordingly, the following
order will be entered.

ORDER: The appeal is dismissed.

SPA-004
Case 17-1512, Document 64, 09/18/2017, 2127423, Page38 of 46

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARI CK STREET
NEW YORK, NEW YORK

File No.: A076-187-995

In the Matter of:

JAEN, Levy Alberto, IN REMOVAL PROCEEDINGS

The Respondent.

CHARGES: Section 237(a)(l)(B) of the Immigration and Nationality Act ("INA")


(Overstay)
INA § 237(a)(2)(B)(i) (Vio]ation of law relating to a controlled
substance)

APPLICATION: Motion to Terminate Proceedings

ON BEHALF OF THE RESPONDENT ON BEHALF OF DHS


Andrea Saenz, Esq. Caroline Clark, Esq.
Brooklyn Defender Services Assistant Chief Counsel
177 Livingston Street, 3rd Floor 201 Varick Street
Brooklyn, NY 11201 New York, NY 10014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Levy Alberto Jean ("the Respondent") is a native and citizen of Panama. (Exhibits
(4'Exs.") l; 2). He entered the United States ("U.S.") on May 8, 1988 on a B-2 nonimmigrant
visa with authorization to remain until November 8, 1988. Id. On December 10, 2008, he was
convicted of criminal possession of controlled substance in the fourth degree, to wit: cocaine, in
violation of New York Penal Law § 220.09(1). (Ex. 3). On September 22, 2014, he was
convicted of criminal possession of a controlled substance in the fourth degree, to wit: heroin, in
violation of NYPL § 220.09(1), and criminal possession of a firearm, in violation of NYPL §
265.0l(b)(l). (Ex. 4).

On April 15, 2015, the Department of Homeland Security ("DHS") served the
Respondent with a Notice to Appear ("NTA"), charging him with removability pursuant to INA
§ 237(a)(l)(B), as an alien who, after admission as a non.immigrant, remained in the U.S. for a

SPA-005
Case 17-1512, Document 64, 09/18/2017, 2127423, Page39 of 46

time longer than permitted, and INA § 237(a)(2)(B)(i), as an alien who was convicted of a
controlled substance offense. (Ex. I). On September 23, 2015, the Respondent appeared pro se
before a prior Immigration Judge ("IJ") and admitted factual allegations one, two, three, five, and
six contained in the NTA. The prior IJ sustained allegation four and the charges of removability.
The Respondent asserted a claim to derivative citizenship, and the prior IJ adjourned proceedings
for further investigation. On May 31 , 2016, the Respondent filed a motion to change venue to
this Court, which the prior IJ granted. See Order of the Immigration Judge, June 13, 2016.

The Respondent appeared before the Court with counsel, and on October 18, 2016, he
filed a motion to terminate proceedings, arguing that he is not removable because he acquired
citizenship at birth from his deceased stepfather. See Resp. Mt. On October 26, 2016, DHS filed
a brief in opposition to the motion. See DHS Opposition. As discussed in more detail below, the
Court finds that the Respondent has failed to demonstrate that he acquired U.S. citizenship,
denies his motion to terminate proceedings, and finds that the charges of removability have been
established by clear and convincing evidence. INA § 240(c)(3)(A); 8 C.F.R. §§ 1240.8(a),
1240. I0(c), (d).

II. LEGAL STANDARDS & ANALYSIS

A. Burden of Proof

An alien is subject to removal, but a U.S. citizen or national is not. INA§ 240(a)(l). A
person who was born abroad is prlma facie an alien and, to rebut that presumption, he bears the
burden of proof to establish by a preponderance of the evidence that he is a U.S. citizen or
national. See Matter of Romandia-Herreros, 11 l&N Dec. 772, 774 (BIA 1966) (citing Matter of
A-M-, 7 I&N Dec. 332, 336 (BIA 1956)); Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330
(BIA 1969); 8 C.F.R. § 34 l .c(2).

The Respondent has conceded that he was born in Panama. See (Exs. I ; 2; 6; 7). As
such, the Respondent is presumed to be an alien and bears the burden of demonstrating by a
preponderance of the evidence that he is a U.S. citizen. Tijerina-Villaneal, 13 I&N Dec. at 330.
For the reasons explained below, the Court concludes that he has failed to meet his burden of
proof

B. Acquisition of U.S. Citizenship at Birth

Generally, a child born outside the U.S. to parents, one of whom is a citizen of the U.S.,
may acquire U.S. citizenship at birth. INA§ 30 l(c)-(e), (g)-(h); 8 U.S.C. § 140l(c)-(e), (g)-(h).
Under former INA§ 301(a)(7), which was in effect at the time of the Respondent's birth on May
12, 1972, a person acquires citizenship if one of his parents is a U.S.C citizen "who, prior to the
birth of such person, was physically present in the [U.S.] or its outlying possessions for a period
or periods totaling not less than ten years, at least five of which were after attaining the age of
fourteen. " INA§ 301(a)(7).

SPA-006
Case 17-1512, Document 64, 09/18/2017, 2127423, Page40 of 46

After careful review of the evidence, the Court finds that the Respondent has not
demonstrated that his stepfather, Jorge Boreland, was in fact his "parent" under fonner INA §
301. Because the issue of parentage is a threshold issue, the Court need not address whether the
Respondent has established the remaining requirements under§ 30l(a)(7).

J. The Respondent's Stepfather, Jorge Boreland ("Mr. Boreland''

As a preliminary matter, the Couit will first discuss the documentary evidence submitted
by the Respondent and DHS regarding the Respondent's father and stepfather.

a. The Respondent's birth documents

The Respondent submitted a certified translation of his original birth certificate, showing
he was born on May 12, 1972 in Panama. (Resp. Mt., Tab Lat 23). "Liberato Jaen Solis" is
identified as the Respondent's birth father. Id. DHS submitted copies of the Respondent's birth
certificate (with translation) that he had allegedly filed with U.S. Citizenship and Immigration
Services ("USCIS"), which also list HLiberato Jaen Solis" as his father. (DHS' Opposition, Tabs
A & B). It is undisputed that the Respondent's mother is Leticia Rogers Gutierrez or Leticia
Rogers Boreland.

The Respondent also submitted a reissued birth certificate from Panama dated January
28, 1977, which lists him as the son of"Jorge Boreland" and HLeticia Rogers." (Resp. Mt., Tab
M). This birth certificate also states that it ''can only be used for scholastic purposes, in
conformity with the Cabinet Decree No. 304 of the Third (3) of September of 1970. '' Id.

b. Documents regarding the Respondent's mother and Mr.


Boreland

The Respondent submitted a Marriage Certificate from Panama showing that "Leticia
Rogers Gutierrez" married ''Jorge Calderwood Boreland Frazier" on August 23, 1952. (Resp.
Mt. , Tab L at 21-22). The Respondent contends that they never divorced, and he submitted
copies of his mother's permanent resident card, New York State Benefit card, and health care
card, which show that she continues to use "Boreland" as her last name. (Resp. Mt., Tab Q). He
also submitted a letter from 1956 indicating Mr. Boreland's attempt to petition for "Leticia
Clifford de Boreland," his wife, to come to the U.S. (Resp. Mt., Tab G).

c. Documents regarding the Respondent and Mr. Boreland

The Respondent submitted a declaration from his sister, Liza Boreland, who states that
although her biological father, Jorge Boreland, is not the Respondent's biological father, Mr.
Boreland "decided to raise [the Respondent] as his own son and gave him his last name." (Resp.
Mt., Tab B at ~ 9). The Respondent also submitted a declaration from his brother, Dennis
Boreland, who affirms that when the Respondent was born, "[the Respondent's] biological father
was not around and my father, [Mr. Boreland], accepted him as his own son." (Resp. Mt., Tab D
at ,r 6).

3
SPA-007
Case 17-1512, Document 64, 09/18/2017, 2127423, Page41 of 46

2. Whether Mr. Boreland is the Respondent's legal parent

Despite the numerous documents submitted, the Court finds that the Respondent has not
established that Mr. Boreland was his legal father for purposes of acquiring U.S. citizenship.
First, it is undisputed that the Respondent's biological father was Liberato Jaen Solis. Although
his biological father never manied his mother and was not a part of his life, the Respondent was
still the legitimate child of his father under Panamanian law. See Matter of Sincl_air, 13 I&N
Dec. 613, 614 (BIA 1970) (noting that the 1946 Panamanian Constitution abolished the
distinction between children born in and out of wedlock). Furthermore, the Respondent's
amended birth certificate does not establish that Mr. Boreland was his legal parent. Rather, this
certificate was issued five years after his birth and states that it is for "scholastic purposes;, only.
(Resp. Mt., Tab M). Although two of the Respondent's siblings contend that Mr. Boreland
accepted the Respondent "as his own son," this is insufficient to conclude that Mr. Boreland was
his parent as a matter of law. See, e.g., Fedorenko v. U.S., 449 U.S. 490,506 (1981) ("our cases
have also recognized that there must be strict compliance with all the congressionally imposed
prerequisites to the acquisition of citizenship''); INS v. Pangilinan, 486 U.S. 875, 885 (1988)
("fundamentally, however, the power to make someone a citizen of the United States .. .has been
given [to courts] as a specific function to be performed in strict compliance with the tenns of an
authorizing statute").

The Respondent argues that the Court should follow precedent arising out of the Ninth
Circuit Court of Appeals to conclude that Mr. Boreland was his legal parent. In Scales v. INS,
the petitioner was born outside the U.S. to a U.S. citizen father and a noncitizen mother during
their marriage. 232 F.3d 1159, 1162 (9th Cir. 2000). Although the father admitted that he was
not the petitioner's biological parent, the Ninth Circuit found that there was Hno requirement of a
blood relationship between [p]etitioner and his citizen father, as there is for an illegitimate
child." Id. at 1166. In reaching this conclusion, the court noted the ''uncontroverted'' record that
the petitioner was born to his parents during their marriage, and that under the relevant state law,
the father was presumed to be the petitioner's natural father. Id. at 1162. The court further
acknowledged that even if this presumption could be overcome, the petitioner still acquired
citizenship at birth because he was the ''legitimate'' child of his married parents; it noted,
however, that a ''blood relationship'' was still necessary for an "illegitimate child." Id: at 1166.

The Ninth Circuit applied its conclusion in Scales to a similar situation in Solis-Espinoza
v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). In that case, the petitioner was born abroad to
noncitizen parents, but he was raised by his noncitizen father and his father,s U.S. citizen wife.
Id. at 1091-92. Noting that the petitioner was undisputedly a ''legitimate,, child "from the time of
his birth" under California law and that his mother was listed on his birth certificate even though
she was not his biological parent, the court concluded that the petitioner acquired citizenship
under former INA§ 301(a)(7). Id. at 1094.

Notwithstanding the Ninth Circuit's conclusion that a blood relationship is not required to
acquire citizenship at birth, the Cou1t finds that the Respondent has not established by a
preponderance of the evidence that he is a U.S. citizen. Tijerina-Villarreal, 13 I&N Dec. at 330.
First, there are several distinctions between the Respondent and the petitioners in Scales and
Solis-Es2inoza. In both of those cases, the petitioners were raised from birth by their citizen and

4
SPA-008
Case 17-1512, Document 64, 09/18/2017, 2127423, Page42 of 46

noncitizen parents. Although the Respondent correctly highlights that the Scales decision made
no mention of the petitioner's birth certificate, the court concluded that the petitioner's biological
father was unknown, that it was uncontroverted that the petitioner was the legitimate son of his
citizen father, and that the petitioner was raised by his manied parents in the U.S. Here,
however, the evidence shows that the identity of Respondent's biological father is known, and
that the Respondent was not raised by his stepfather at birth. Rather, the Respondent is the
legitimate son of Liberato Jaen Solis,~ Sinclair, 13I&N Dec. at 614, and, more significantly,
he was raised by his grandparents in Panama. See (Resp. Mt., Tab Bat~~ 9-10) (declaration of
Liza Boreland, stating that H[s]hortly after [the Respondent's] birth, my parents left [him] with
our grandparents, my siblings, and me, and returned to the United States ... shortly after [l 979]
we moved to the United States. Everyone came with us except [the Respondent]"); (Resp. Mt.,
Tab C at tj[ 4) (declaration of Vivian Buccino, stating that the Respondent's "grandparents in
Panama raised my siblings and me for most of our childhood. Our parents lived in the United
States during this time."); see also (Ex. 2) (I-94 indicating that the Respondent entered the U.S.
on May 8, 1988, at age fifteen).

In both Scales and Solis-Espinoza, the court emphasized the undisputed parent-child
relationship between the petitioner and the non-biological parent, and it found there was !!no
good reason to treat" them otherwise. Solis-Espinoza, 401 F.3ed at 1094. Here, however, the
only evidence confoming the Respondent's relationship with Mr. Boreland include his amended
birth certificate, which was issued five years after his birth and states that its sole use is for
"scholastic purposes," (Resp. Mt., Tab M), and the statements from two of the Respondent's
half-siblings that Mr. Boreland raised him as his own son. See (Resp. Mt., Tabs B & D). While
the Court does not question the validjty of the marriage between Mr. Boreland and the
Respondent> s mother, the evidence presented is insufficient to conclude that the Respondent was
the legitimate son of Mr. Boreland under New York state law. See (Resp. Mt., Tab V) (New
York law regarding maniage and child legitimacy). Accordingly, because the Respondent was
born to two noncitizen parents, neither of whom naturalized, he has not acquired citizenship
under former INA§ 30l(a).

Moreover, even if the evidence supported a different conclusion regarding the


Respondent's relationship with his stepfather, this Court is bound by the Second Circuit and the
Board of Immigration Appeals ("BIA"), neither of which has ruled on the present issue. Rather,
the Second Circuit has adopted a strict reading of our citizenship laws. See, e.g.• Hizam v.
Kerry, 747 F.3d 102, 111 (2d Cir. 2014) (concluding that, despite the vast equities favoring the
petitioner, "[w]ell-settled case law bars a court from exercising its equity powers to naturalize
citizens," even when it would have achieved "a just result here"). In addition, in numerous
unpublished decisions, the BIA has declined to extend Scales or Solis-Espinoza to similar
situations. See, e.g. In re: Rodolfo Lastimos~ 2013 WL 3899763 (BIA 2013) (concluding that
former INA § 301 (a)(7) 1'applies only to those who have acquired United States citizenship at
birth, and does not provide for the acquisition of citizenship after through birth adoption, through
the establishment of a stepparent-stepchild relationship, or through other means"); In re: Torres-
Valdez, 2005 WL 3802143 (BIA 2005) (finding the evidence ''inadequate'' to rebut the
presumption of alienage, as the respondent's birth certificate "gives 'Mexican' as the claimed
nationality for both of his parents at that time," and noting that he "was admitted in 1974 as an
immigrant," but made no claim to citizenship until he was "in immigration detention two

5
SPA-009
Case 17-1512, Document 64, 09/18/2017, 2127423, Page43 of 46

decades later"); In re: J-C-C-P-, 2016 WL 4619949 (AAO 2016) (requiring that the applicant,
who claimed he acquired citizenship from his stepfather under§ 301 (a)(7), "first establish that he
was born out of wedlock to a U.S. citizen father," and finding that ~'legitimation of a child by a
U.S. citizen's acknowledgement of the child and marriage to the mother does not result in the
bestowal of citizenship upon the child if the natural relation of parent and child does not exist
between the acknowledging citizen and the child"),

Thus, because the Respondent has failed to establish that his stepfather, Jorge Boreland,
was his parent at the time of his birth, he has failed to show that he acquired citizenship under
former INA§ 301(a)(7). The Court therefore declines to address whether he has met his burden
of proof regarding whether his stepfather was a U.S . citizen and whether he met the physical
presence requirements. rNA § 307(a)(7). Furthermore, as there are no applications for relief, the
Court orders the Respondent removed from the U.S.

Accordingly, after a careful review of the record, the following Order is entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's motion for tennination of proceedings is


DENIED;

IT IS FURTHER ORDERED that the Respondent be removed from the U.S. to Panama based
on the charges of removability set forth in the NTA.

Date
Immi

6
SPA-010
Case 17-1512, Document 64, 09/18/2017, 2127423, Page44 of 46

Immigration and Nationality Act §301(a)(7) (1972), 8 U.S.C. §1401(a)(7) (1972)

NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec. 301. (a) The following shall be nationals and citizens of the United States at
birth:

[….]
(7) a person born outside the geographical limits of the United States and its
outlying possessions of parents one of whom is an alien, and the other a citizen
of the United States who, prior to the birth of such person, was physically
present in the United States or its outlying possessions for a period or periods
totaling not less than ten years, at least five of which were after attaining the
age of fourteen years: Provided, That any periods of honorable service in the
Armed Forces of the United States by such citizen parent may be included in
computing the physical presence requirements of this paragraph.

SPA-011
Case 17-1512, Document 64, 09/18/2017, 2127423, Page45 of 46

Immigration and Nationality Act §309(a), 8 U.S.C. §1409(a)

Sec. 309. Children born out of wedlock

a) The provisions of paragraphs (c), (d), (e), and (g)1 of section 301 of this title, and
of paragraph (2) of section 308 of this title, shall apply as of the date of birth to a
person born out of wedlock if—

(1) a blood relationship between the person and the father is established by
clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person's
birth,

(3) the father (unless deceased) has agreed in writing to provide financial
support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years—


(A) the person is legitimated under the law of the person's residence or
domicile,
(B) the father acknowledges paternity of the person in writing under
oath, or
(C) the paternity of the person is established by adjudication of a
competent court.

1
Former INA §301(a)(7), the statute that pertains to Mr. Jaen, has since been
redesignated as INA §301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678, 1686
(2017).

SPA-012
Case 17-1512, Document 64, 09/18/2017, 2127423, Page46 of 46

N.Y. Domestic Relations Law §24(1)

Sec. 24. Effect of marriage on legitimacy of children

1. A child heretofore or hereafter born of parents who prior or subsequent to the


birth of such child shall have entered into a civil or religious marriage, or shall
have consummated a common-law marriage where such marriage is recognized
as valid, in the manner authorized by the law of the place where such marriage
takes place, is the legitimate child of both birth parents notwithstanding that
such marriage is void or voidable or has been or shall hereafter be annulled or
judicially declared void.

SPA-013