Argued: April 12, 2018
SAMUEL (Andrea A. Saenz, Brooklyn Defender Services, on the
brief), Cambridge, MA, for Respondent Levy Alberto Jaen.
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
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,
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.
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.
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"). 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
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.
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.
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.
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.
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.
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