UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010
May 31, 2011
DAVINO H. WATSON, PETITIONER,
ERIC H. HOLDER , JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.
Watson v. Holder
Argued: May 17, 2011
Before: CABRANES, STRAUB, and RAGGI, Circuit Judges.
The question presented for our review is whether petitioner Davino H. Watson has been "legitimated" under Jamaican law within the meaning of 8 U.S.C. § 1101(c)(1) even though his parents never married, with the result that he has obtained derivative citizenship as a consequence of the naturalization of his father.
Watson, a native of Jamaica, seeks review of a February 5, 2009, order of the Board of Immigration Appeals ("BIA"), affirming the November 13, 2008, decision of Immigration Judge ("IJ") John B. Reid, which denied Watson's motion to terminate the removal proceedings brought against him on the grounds that Watson had not derived U.S. citizenship through the naturalization of his father.
In re Watson, No. A046 633 823 (BIA Feb. 5, 2009), aff'g No. A046
633 823 (Immig. Ct. Batavia, N.Y.
Nov. 13, 2008).
Watson is a 26-year-old native of Jamaica who entered the United
States on August 4, 1998, as a
lawful permanent resident to live with his father and step-mother
(the latter was an American citizen).
On November 23, 2004, Watson was convicted of attempted robbery in
the second degree in New
York State court. Roughly three years later, in September 2007,
Watson was convicted in New York State court for the attempted sale of cocaine. As a result of
these convictions, the Department of Homeland Security initiated removal proceedings against Watson in
Appearing before the IJ in August 2008, Watson acknowledged his
previous convictions, but denied that he was a citizen of Jamaica. Watson claimed that he
had obtained derivative American
citizenship through his father, who was naturalized in 2002 when
Watson was 17 years old. The IJ
continued the proceedings in order to allow Watson to pursue his
claim to American citizenship with
U.S. Citizenship and Immigration Services. When these efforts
were rebuffed, the matter returned to
the IJ. Watson pressed his argument that he was entitled to
American citizenship because he was a
minor, living with his father in the United States, when his father
became a citizen of the United States.
Under the Immigration and Nationality Act ("INA"), 8 U.S.C. §
1431(a), "[a] child born outside
of the United States automatically becomes a citizen of the United
States when all of the following conditions have been fulfilled: (1) [a]t least one parent of the
child is a citizen of the United States, whether by birth or by naturalization[;] (2) [t]he child is under
the age of eighteen years[; and] (3) [t]he child is residing in the United States in the legal and physical
custody of the citizen parent pursuant to a lawful admission for permanent residence." For purposes of these
requirements, Section 1101(c)(1) defines a "child" as:
an unmarried person under twenty-one years of age and includes a
child legitimated under the
law of the child's residence or domicile, or under the law of the
father's residence or domicile,
whether in the United States or elsewhere . . . if such
legitimation . . . takes place before the
child reaches the age of 16 years . . . and the child is in the
legal custody of the legitimating or
adopting parent or parents at the time of such legitimation or
8 U.S.C. § 1101(c)(1).
The only issue in dispute between the parties is whether Watson
qualifies as a "child" (of his American father) within the meaning of this statutory provision.
The Attorney General has argued that Watson is not a child because his biological parents never
married, making him illegitimate under
Jamaican law; in the alternative, the Attorney General claims that
even if Watson has been considered "legitimate" since birth under the applicable law (here, Jamaica),
he still does not qualify as a child
under § 1101(c)(1) because he was not in the legal custody of his
father at birth.
On November 13, 2008, the IJ issued an oral decision finding that
Watson had failed to demonstrate that he had derived citizenship from his father. The
IJ's decision was principally
predicated on two separate holdings: (1) the burden is on Watson
to establish that he is indeed an
American citizen, and (2) previous precedent of the BIA,
specifically Matter of Hines, 24 I. & N. Dec. 544, 547 (BIA 2008), establishes that children born out of
wedlock--as Watson concedes he was--are
generally not treated as "legitimate" under Jamaican law, meaning
that Watson cannot be considered the "child" of his American father for purposes of §
The BIA agreed with the IJ's determination that Watson had not been
Jamaican law. The BIA also held, in the alternative, that even if
Watson were to be considered legitimate under Jamaican law, he still would be ineligible for
derivative citizenship because he failed to establish that he was in his father's legal custody at the time of
his legitimation (the date his birth certificate was signed, according to Watson). Watson now petitions
for our review of the BIA's decision holding that he is an alien subject to
The instant case presents two central issues for our review (1)
what is the precise definition of
"legitimated" under § 1101(c)(1), and (2) what does Jamaican law
have to say about the concept of legitimation. Because we remain unsure as to the exact definition
of "legitimated" that the BIA has settled upon, that issue merits our primary focus.
For many years the BIA appears to have been of the view that the
concept of legitimacy turned
on the substantive legal rights conferred by applicable law rather
than on mere labels codified by statute. The 1981 case of Matter of Clahar, 18 I. & N. Dec. 1
(BIA 1981), is most instructive here.
Matter of Clahar is the first case in which the BIA held that the Jamaican Status of Children Act of 1976 had abolished the concept of illegitimacy in that country. In reaching this decision, the BIA found particularly noteworthy Jamaica's representation that, as a result of the Status of Children Act, "'the legal duties and obligations of a father towards a child born out of wedlock are in all significant respects the same as those of a child born in wedlock.'" Id. at 5 (quoting a memorandum provided). But in 1 2008, after 27 years, the BIA explicitly overruled Matter of Clahar in its decision in Matter of Hines.
In Matter of Hines--the case that controlled the BIA's decision in the
instant matter--the BIA explained
that "although the Jamaican Status of Children Act of 1976
eliminated all legal distinctions between 'legitimate' and 'illegitimate' children and provided a mechanism
by which the father of a child born out of wedlock could acknowledge paternity, section 2 of the Jamaican
Legitimation Act has remained in effect and continues to provide that a child born out of wedlock
can be 'legitimated' only by the subsequent marriage of his or her parents." Matter of Hines, 24 I.
& N. at 547-48.
To be sure, an agency does not forfeit Chevron deference merely
because it has reconsidered a
previous legal interpretation. See Nat'l Cable & Telecomms. Ass'n
v. Brand X Internet Servs., 545 U.S. 967,
981 (2005) ("Agency inconsistency is not a basis for declining to
analyze the agency's interpretation under the Chevron framework. Unexplained inconsistency is, at
most, a reason for holding an interpretation to be an arbitrary and capricious change from
agency practice under the Administrative Procedure Act."). But in reviewing the positions the BIA has
taken on the "legitimation" question, we have two lingering concerns that we think ought to be resolved by
the agency in the first instance.
First, we remain unsure as to the precise definition the BIA has adopted for determining whether a "child" has been "legitimated" under the law of a particular jurisdiction for purposes of § 1101(c)(1). For instance, does the BIA recognize a difference between legitimate and illegitimate that is purely formalistic--in other words, where the law in question retains the label of "legitimate" for children born to married parents, but ensures that "illegitimate" children are treated exactly the same as their legitimate counterparts--or is some substantive discrimination in the law necessary?*fn1 Second, we are unclear as to the legal and/or logical basis for the BIA's interpretation.
Accordingly, on remand, the BIA is instructed to (1) clarify
precisely how it interprets the
concept of "legitimation" as it is used in § 1101(c)(1), and (2)
justify how it arrived at that particular interpretation. Once that is accomplished, the BIA should again
analyze and explain how its understanding of "legitimation" applies to Jamaican law and the
facts of this case. Depending on the outcome of these various steps, the BIA may wish to take the
opportunity of this remand to develop the record on other outstanding issues that may bear on the merits
of this matter. In particular, the BIA may wish to explore whether Watson was "in the legal custody"
of his father at any time during Watson's stay in Jamaica. It might also be helpful for the BIA to
seek further guidance on the interplay between the Legitimation Act of 1909 and the Status of Children Act
of 1976 in Jamaican law.
For the foregoing reasons, we GRANT the petition for review and REMAND the cause to the BIA for proceedings consistent with this opinion. If and when petitioner seeks review of BIA determinations following this remand, the cause shall be referred to this panel. See Butt v. Gonzales, 500 F.3d 130, 137 (2d Cir. 2007); United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).
The mandate shall issue forthwith.