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United States v. Connolly

December 4, 2008

UNITED STATES OF AMERICA, APPELLEE,
v.
ODELL CONNOLLY, DEFENDANT-APPELLANT,



SYLLABUS BY THE COURT

Defendant-Appellant Odell Connolly was found guilty of illegal reentry into the United States as a convicted felon in violation of 8 U.S.C. § 1326(b)(2). Connolly argued that the charge must be vacated because he had established the requisite showing for United States citizenship under 8 U.S.C. § 1403 based on the fact that his biological father was a United States citizen and a member of the Army Reserves at the time of Connolly's birth in Panama. The panel holds that an inactive reservist is not "employed by the United States government" for purposes of 8 U.S.C. § 1403 under the plain meaning of the statutory language. Thus, even assuming that Brewer fell within the definition of "father" under § 1403, the panel concludes that Connolly cannot establish that he is a United States citizen under the statute.

The opinion of the court was delivered by: Sessions, District Judge

Submitted: June 18, 2008

Before STRAUB, RAGGI, Circuit Judges, SESSIONS,*fn1 District Judge.

Defendant-Appellant Odell Connolly appeals from the judgment of the District Court for the Eastern District of New York (Sandra L. Townes, Judge) entered on June 20, 2006, finding him guilty of illegal reentry into the United States as an alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Connolly argues on appeal, as he did before the District Court, that the judgment must be vacated because he is a United States citizen under 8 U.S.C. § 1403. The District Court concluded that § 1403 does not confer citizenship upon Connolly for two reasons. First, it held that Larry Brewer, Connolly's biological father, did not qualify as Connolly's father for the purposes of § 1403. Second, it held that Brewer was not employed by the United States government at the time of Connolly's birth. We affirm the judgment of the District Court solely on the latter ground.

BACKGROUND

The parties stipulated to the following relevant facts at the proceedings before the District Court. Connolly was born in Panama on April 21, 1968. His mother, Norma Connolly, was at the time a Panamanian citizen, but his father, Larry Brewer, was a United States citizen. Brewer was drafted into the United States Army Reserves on April 29, 1966, and, after a period of training, posted to the 577th Artillery Brigade and stationed at Fort Sherman in the Panama Canal Zone. Brewer remained in Panama on active duty until April 3, 1968. While in Panama, Brewer and Norma Connolly had a relationship which culminated in Norma Connolly's pregnancy. Connolly's paternity is uncontested; indeed, Brewer submitted a sworn affidavit to the District Court acknowledging that his paternity of Connolly. Brewer and Norma Connolly were never married. On April 3, 1968, Brewer was separated from active duty, transferred into the Ready Reserves, and assigned to a command in St. Louis, Missouri. Eighteen days later, Odell Connolly was born.

From April 1968 through June 1970, while Brewer was still a member of the reserves, the Army neither ordered nor asked him to perform any duties or services. Brewer did not receive any pay nor any other form of compensation from the Army or any other agency or unit of the United States government. The Army maintained the authority to recall Brewer to active duty; however, this authority was not exercised. Upon his return to Illinois in 1968, Brewer resumed his prior employment with the Ford Motor Company full-time. In June 1970, Brewer transferred voluntarily to the 425th Transportation Command in Forest Park, Illinois, and for the four months that he was there, he participated in periodic drills and training. In October 1970, Brewer transferred back to the St. Louis command; in April 1971, he was transferred to the Army Standby Reserves; and in April 1972, Brewer was discharged from military service.

Connolly legally entered the United States in 1993. He was arrested on January 24, 1995, and pled guilty to a drug-related felony on December 6, 1995. The Immigration and Naturalization Service ("INS") thereafter placed Connolly in deportation proceedings, and he was ultimately deported in December 1998. At no point during the deportation proceedings did Connolly assert his claim of United States citizenship. Connolly most recently reentered the United States sometime after January 2002. He subsequently gained employment, first as a medical assistant and then as an emergency medical technician. After a routine check, the Department of Homeland Security*fn2 discovered that Connolly appeared to be residing in the United States and arranged for his arrest on April 28, 2005.

DISCUSSION

Connolly maintains that he is and has been a United States citizen since birth by force of 8 U.S.C. § 1403, a rarely adjudicated provision of immigration and nationality law. Section 1403 prescribes the following:

Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

8 U.S.C. § 1403(b). The application of this provision to the specific facts of this case raises two exegetic questions regarding the definitions of "father" and "employed." We review the District Court's determination regarding the statute's definitions of "father" and "employed by the United States" de novo, because they are matters "of statutory interpretation." Boykin v. KeyCorp, 521 F.3d 202, 207 (2d Cir. 2008).

The first question is whether the term "father" as used in ยง 1403 refers simply to a male parent and therefore includes the biological father of a child born out of wedlock. The government has proposed a more narrow and complex definition. Relying on an interpretation letter apparently issued by the INS, Interpretation 303.1, the government argues that "father" as used in this section must be read to exclude the father of a child born out of wedlock "unless the child is legitimated in accordance with the law of the father's domicile." INS Interpretation Letter 303.1, 2001 WL 1333855 (2001). The District Court concluded that Interpretation 303.1 was entitled to Chevron deference, despite the scant information available about the ...


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