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Jaen v. Sessions

United States Court of Appeals, Second Circuit

August 13, 2018

LEVY ALBERTO JAEN, Petitioner,
v.
JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent.

          Argued: April 12, 2018

          IAN SAMUEL (Andrea A. Saenz, Brooklyn Defender Services, on the brief), Cambridge, MA, for Respondent Levy Alberto Jaen.

          RACHEL L. BROWNING, Trial Attorney (Keith I. McManus, Assistant Director, on the brief), for Chad A. Readler, Acting Assistant Attorney General, Washington, D.C., for Respondent Jefferson B. Sessions III, Attorney General of the United States.

          Shailee Diwanji Sharma, Andrew A. Ruffino, on the brief, Covington & Burling LLP, New York, N.Y. for Amici Curiae Family Law Professors, Jamie R. Abrams, University of Louisville Brandeis School of Law, Susan Frelich Appleton, Washington University School of Law, Barbara A. Atwood, University of Arizona Rogers College of Law, Margaret B. Drew, University of Massachusetts School of Law, Ann E. Freedman, Rutgers Law School, Philip M. Genty, Columbia Law School, Cynthia Godsoe, Brooklyn Law School, Martin Guggenheim, New York University School of Law,

          Leslie Harris, University of Oregon School of Law, Susan Hazeldean, Brooklyn Law School, Deseriee Kennedy, Touro Law Center, Theo Liebmann, Maurice A. Deane School of Law at Hofstra University, Solangel Maldonado, Seton Hall Law School, Carlin Meyer, New York Law School, Catherine J. Ross, George Washington University Law School, Elizabeth Scott, Columbia Law School, Barbara J. Stark, Maurice A. Deane School of Law at Hofstra University, Edward Stein, Cardozo School of Law, David B. Thronson, Michigan State University College of Law, in support of Petitioner Levy Alberto Jaen.

          Before: WINTER, POOLER, and PARKER, Circuit Judges.

          POOLER, Circuit Judge.

         Levy Alberto Jaen petitions for review of the May 2, 2017 decision of the Board of Immigration Appeals ordering him removed from the United States pursuant to 8 U.S.C. §§ 1227(a)(1)(B) and 1227(a)(2)(B)(i). We agree with Jaen that he acquired citizenship at birth through his parent, Jorge Boreland, and that the government had no authority to detain him for an immigration violation or to order him removed from the United States. Accordingly, on April 13, 2018, we GRANTED the petition for review and ordered the government to immediately release Jaen from custody and terminate all removal proceedings against him. We indicated that an opinion would follow in due course.

         Granted.

         On April 15, 2015, Levy Alberto Jaen was served with a Notice to Appear charging him with removability under Sections 237(a)(1)(B) and 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA").[1] During the immigration proceedings that followed, both before the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA"), Jaen repeatedly raised the issue of citizenship, claiming that he was a United States citizen and therefore unremovable. On April 13, 2018, this Court filed an order granting Jaen's petition for review, determining that he is a United States citizen and not subject to immigration detention or removal. The order effectuated his release from immigration detention, terminated all removal proceedings against him, and indicated an opinion would follow.

         We hold today that Jaen acquired United States citizenship at birth through his United States citizen parent, Jorge Boreland, the husband of his mother and his legal parent under the relevant section of the INA.

         BACKGROUND

         Jaen was born on May 12, 1972 in Panama. At the time of Jaen's birth, his mother, Leticia Rogers Boreland, was married to a man named Jorge Boreland, who had been born in the Panama Canal Zone in 1927 and became a naturalized United States citizen in 1961. Jaen's Panamanian birth certificate, however, lists Liberato Jaen as his father, a man with whom Leticia had an extramarital relationship during her marriage to Jorge. Leticia and Jorge were married in 1952, had seven children together prior to the birth of Jaen (three of whom were born in Panama, four of whom were born in the United States), and remained married for approximately 47 years until Jorge died in 1999.

         Jaen lived in Panama with his grandparents until he entered the United States on a nonimmigrant visa on May 8, 1988 at the age of 15. He was raised as the youngest child of the Boreland family and has remained in the United States since his 1988 entry.

         In 2008, Jaen was convicted of criminal possession of a controlled substance in the fourth degree under New York state law. In 2014, he was convicted of a second controlled substance violation in New York. While he was serving his sentence for the second conviction, Immigration and Customs Enforcement ("ICE") served Jaen with a Notice to Appear, charging him with removability.

         Jaen appeared pro se in his initial appearances before the IJ, but repeatedly raised the issue of his citizenship. The first IJ to hear Jaen's case determined that Jaen was not a citizen, but permitted him to pursue other relief in later proceedings. Jaen's case was then transferred to a different immigration court before a different IJ, where Jaen was represented by his present counsel. On October 18, 2016, Jaen's counsel filed a motion to terminate removal proceedings on the basis of Jaen's acquired United States citizenship. The IJ orally denied the motion during a hearing on November 23 and issued a written decision on December 8. The BIA affirmed that decision and order on May 2, 2017. Jaen remained in immigration detention for the entire duration of his immigration proceedings and subsequent appeals until our Court ordered his release on April 13, 2018.

         DISCUSSION

         For reasons explained below, the sole question presented in this appeal is whether Jorge Boreland was Jaen's "parent" for the purposes of having acquired United States citizenship at birth under former INA § 301(a)(7), 8 U.S.C. § 1401(a)(7). We hold today that the INA incorporates the common law meaning of "parent" into former Section 1401(a)(7), such that a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link. Former Section 1401(a)(7) does not include a requirement ...


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