United States District Court, E.D. New York
For Raymond Ricardo Simpson, Defendant: Mildred M. Whalen, Federal Defenders of New York, Inc., Brooklyn, NY.
For USA, Plaintiff: Darren LaVerne, LEAD ATTORNEY, United States Attorney's Office, Eastern District of New York, Brooklyn, NY.
ROSLYNN R. MAUSKOPF, United States District Judge.
MEMORANDUM AND ORDER
A bedrock principle of our nation's naturalization laws has been to accord U.S. citizenship upon the children of naturalized citizens. While the prerequisites and bases for so doing have shifted over time, our society and culture -- as developed by, of course, the immigrants who make up the fabric of this nation -- value keeping families united in the course of welcoming new people to the country. But as our laws are designed to accord citizenship to a child of a newly minted U.S. citizen, so too do our laws ensure that doing so does not come at the cost of depriving another parent of his rights in his child.
On November 3, 2010, defendant Raymond Ricardo Simpson (" Simpson" ) was indicted on one count of illegal reentry for being found in the United States without the consent of the Secretary of the Department of Homeland Security after having been deported from the United States, in violation of 8 U.S.C. § § 1326(a), 1326(b)(2) and 8 U.S.C. § § 1351 et seq . (Doc. No. 9.) On April 3, 2012, the government moved in limine to exclude evidence regarding Simpson's anticipated defense that he derived United States citizenship from his mother. (Doc. No. 38.) Simpson filed a memorandum in opposition to the motion (Doc. No. 40), to which the government responded, (Doc. No. 43). On July 24, 2012, the Court held the motion schedule in abeyance pending a determination by the United States Citizenship and Immigration Service (" USCIS" ) on Simpson's claim to U.S. citizenship. After the USCIS determined that Simpson was not U.S. citizen, the parties resumed briefing on the motion. (Doc. Nos. 47, 49.) The Court held status conferences on October 11, 2012 and November 14, 2012, and requested that the parties provide English translations of Panamanian documents that the Court felt pertinent to the motion. The parties provided these translations. ( See Doc. Nos. 50-51, 53.) The defense submitted additional briefing regarding the translated documents. (Doc. No. 52.) Upon consideration of the motion, the opposition thereto, and the record of the case, the Court concludes that the government's motion must be GRANTED.
In anticipation of Simpson's expected defense at trial that he derived citizenship from his mother and therefore is not an alien subject to prosecution for illegal reentry, the government moved in limine to exclude the introduction of evidence and argument regarding his derivative citizenship. The government argues first, that whether Simpson has derived citizenship from his mother is a question of law that may be decided by the Court, and second, that, as a matter of law, Simpson has not derived citizenship from his mother. Separately, the government argues that Simpson should be precluded from presenting evidence regarding the positions of the USCIS' predecessor, the Immigration and Naturalization Service (" INS" ), on whether Simpson is a U.S. citizen. Simpson argues the opposite on both issues, and contends that he should be permitted to present evidence regarding the INS' positions.
The relevant facts are undisputed, and laid out in greater detail in Judge Orenstein's Report and Recommendation on Simpson's motion to dismiss the indictment, from which the facts recited here are derived. (Doc. No. 30.) Simpson was born in Panama on July 5, 1959 to Iceldia Joseph and Raymond Ricardo Simpson. Simpson was born out of wedlock, as, at the time of his birth, his mother was married to another man, George Taylor. Simpson's birth certificate indicates that Iceldia Joseph is his mother and Raymond Ricardo Simpson is his father. Simpson's father signed Simpson's birth certificate and declared his paternity before an auxiliary record of the Civil Registry soon after Simpson's birth.
Simpson entered the United States as a legal permanent resident on August 4, 1967. Simpson's mother became a naturalized U.S. citizen on February 26, 1974. At that time, Simpson lived with his mother in the United States and was fourteen years old.
From 1982 onward, Simpson amassed a criminal record, which prompted a number of interactions with INS officials and investigations into his immigration status. In 1988, Simpson was in the custody of the INS. Simpson claimed to INS officials that he derived citizenship through his mother; the next day, INS officials told him they made a mistake and released him. Then, in 1991, Simpson was imprisoned. He applied to a prison program, and was told he was ineligible because of an immigration detainer. Simpson told prison officials that the detainer was a mistake. An INS official sent a letter to the prison stating that the INS concluded that Simpson was a derivative United States citizen and not subject to deportation proceedings. Then, in 1994, Simpson spoke with individuals that he believed were from INS about his immigration status. The INS took no action against Simpson at that time.
Simpson was paroled in 2003. In 2005, the INS issued a warrant for Simpson's arrest and a notice to appear, asserting that Simpson was deportable because of his convictions for aggravated felonies. Simpson claimed that he was not subject to deportation because he derived citizen from his mother. The immigration judge ruled that Simpson was not a derivative citizen, and in 2006, Simpson was deported and removed from the United States.
On August 24, 2010, the New York City Police Department arrested Simpson in Brooklyn on drug possession charges. Based on that arrest, the federal government secured a warrant to arrest Simpson for illegally reentering the United States. Simpson was indicted by a grand jury on the illegal reentry charge on November 3, 2010. Simpson moved to dismiss the indictment, which the Court denied in adopting the Report & Recommendation on
February 27, 2012. (Doc. No. 33.) The government then filed this motion in limine .
I. Derivative Citizenship
A. Statutory Framework
To determine whether Simpson derived citizenship from his mother, the Court applies " the law in effect when [he] fulfilled the last requirement for derivative citizenship." Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005) (citing Rodriguez-Tejedor, 23 I. & N. Dec. 153, 163 (BIA 2001)). The parties agree that the relevant citizenship law in effect when he fulfilled the last requirement, that is, when his mother naturalized in 1974, was section 321(a) of the Immigration and Nationality Act (" INA" ), as codified in former 8 U.S.C. § 1432(a). Section 1432(a) provides as follows:
A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or(2) The naturalization of the surviving parent if one of the parents is deceased; or(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if(4) Such naturalization takes place while such child is under the age of sixteen years; and(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of sixteen years.
Thus, there are a four general circumstances in which a child can derive citizenship from his parent or parents: (1) if both of his parents naturalize; (2) if one parent naturalizes while the other is deceased; (3) if one parent, having legal custody of the child after a legal divorce or separation of the parents, naturalizes; and (4) if the child is born out of wedlock and his mother naturalizes. The fourth scenario is what is potentially presented here, and is discussed in more detail below.
Particularly relevant to this motion is Congress's purpose in enacting § 1432(a). The legislative history underlying § 1432(a) is " sparse." Nehme v. I.N.S., 252 F.3d 415, 424 (5th Cir. 2001). Courts considering the statute's purpose and intent, however, have concluded that " Congress wanted to ensure that only those alien children whose 'real interests' were located in America with their custodial parent, and not abroad, should be automatically naturalized." Id. at 425. Moreover, in adopting the provision, Congress sought to " promote marital and family harmony and . . . prevent the child from being separated from an alien parent who has a legal right to custody." Bustamante-Barrera
v. Gonzales, 447 F.3d 388, 397-98 (5th Cir. 2006) (quoting Nehme, 252 F.3d at 425). In short, Congress's goal in enacting § 1432(a) was " the protection of parental rights." Gorsira v. Loy, 357 F.Supp.2d 453, 462 (D. Conn. 2005) (citing Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003)). The statute prevents a naturalizing parent from divesting the absent alien parent from his or her rights in the child. Gorsira, 357 F.Supp.2d at 462 (citations omitted). In other words, " if United States citizenship were conferred to a child where one parent naturalized, but the other parent remained an alien, the alien's parental rights could be effectively extinguished." Barthelemy, 329 F.3d at 1066 (citing Fierro v. Reno, 217 F.3d 1, 6 (1st Cir. 2000) and Wedderburn v. I.N.S., 215 F.3d 795, 800 (7th Cir. 2000)); see also Brandao v. Attorney General, 654 F.3d 427, 429-30 (3d Cir. 2011) (explaining that § 1432(a)(3) is " consistent with the important governmental objective of allowing single parent derivative citizenship while protecting the rights of alien parents by limiting circumstances in which it (derivative citizenship) can occur" ).
Congress also recognized that in some circumstances, protecting the rights of both parents is unnecessary or unwarranted. See Gorsira, 357 F.Supp.2d at 462 (" The exceptions . . . reflect Congress' recognition of circumstances in which this general rule precluding derivative citizenship when only one parent naturalizes is overly broad." ). Thus, it carved out some exceptions to the basic rule that both parents must naturalize in order for their child to derive citizenship in subsections (2) and (3) of the statute. In these exceptions, " the alien parent's rights are not of concern," such as when the alien parent is deceased, the parents are legally divorced or separated, or if the father is the alien and has not legitimated the child. Id.; see also Lewis v. Gonzales, 481 F.3d 125, 131 (2d Cir. 2007) (noting that with few exceptions, § 1432(a) " recognizes that either parent--naturalized or alien--may have reasons to oppose the naturalization of their child, and it respects each parent's rights in this regard" ).
Only subsections (3)-(5) of § 1432(a) apply to Simpson. As such, to derive citizenship, Simpson must meet five requirements. First, Simpson had to have been born outside of the United States. Second, he had to have been born out of wedlock. Third, Simpson's " paternity" cannot have been " established by legitimation." Fourth, at the time of his mother's naturalization, Simpson had to have been under the age of sixteen years. And fifth, at the time of his mother's naturalization, Simpson had to have been residing in the United States pursuant to a lawful admission for permanent residence.
Simpson and the government agree that Simpson was born in Panama and out of wedlock (satisfying requirements one and two) and that, at the time of his mother's naturalization, Simpson was under the age of sixteen and residing in the United States pursuant to a lawful admission for permanent residence (satisfying requirements four and five). Only the third requirement -- whether Simpson's " paternity . . . has not been established by legitimation" -- is contested here. § 1432(a)(3).
Before addressing the central issue of whether Simpson's paternity has been established by legitimation, the Court considers two preliminary issues that Simpson raises in his opposition papers. First, Simpson urges that the INA's definition of a " child," found in § 1101 of the INA in force at the relevant time, adds on yet another requirement relevant to his derivative citizenship claim. As discussed below, the Court concludes that it does not. Second, Simpson argues that whether his paternity has been established by legitimation is a fact question for the jury. The
Court disagrees, and finds that this question can, and must, be decided as a matter of law by a judge. The Court addresses each argument in turn.
1. " Child" in the INA
At the time of his mother's naturalization, § 1101(c)(1) of the INA defined " child" as follows:
(c) As used in subchapter III of this chapter--
(1) The term " child" means 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, and, except as otherwise provided in sections 1431 to 1432 of this title, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.
According to Simpson, in order to be a child whose " paternity has not been established by legitimation" within the meaning of § 1432(a), the child must also be " in the legal custody of the legitimating . . . parent or parents at the time of such legitimation or adoption." § 1101(c)(1). The record is silent as to whether Simpson was in his father's legal custody at the time his father signed the birth certificate; as such, Simpson contends that his paternity was not established by legitimation within the meaning of § 1432(a)(3).
Simpson's argument highlights an apparent conflict between the more specific terms of § 1432(a)(3) and the more general definition of a child in § 1101(c)(1). The Second Circuit addressed a similar inconsistency between § 1432(a) and § 1101(c)(1) in Langhorne v. Ashcroft, 377 F.3d 175 (2d Cir. 2004). There, an alien claimed derivative citizenship pursuant to § 1432(a)(3) in a removal proceeding. At the time of his father's naturalization, the petitioner was fifteen years old. His parents divorced when he was nineteen. Id. at 178. The petitioner argued that he was still a " child" within the meaning of § 1432(a)(3) because he was under the age of twenty-one, as provided by the INA's general definition of a child, even though § 1432(a)(4) provides that, in the case of deriving citizenship from separated or divorced parents, the child must be under the age of eighteen. Id. The Second Circuit rejected the petitioner's argument. In the court's view, § 1432(a) clearly stated that, in order to derive citizenship from one parent in the case of divorce, the naturalization of the parent must occur after the parents are divorced and while the child is under the age of eighteen. Therefore, " the general definition of 'child' [in the INA] cannot trump this plain reading of" § 1432(a). Id. at 180. In so holding, the court emphasized that " 'in fulfilling our responsibility in interpreting legislation, we are not guided by a single sentence or member of the sentence but (rather) look to the provisions of the whole law, and to its object and policy.'" Id. (quoting Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)).
The same reasoning applies here. The plain language of § 1432(a)(3) makes clear that no custody requirement applies because it sets forth explicitly the requirements for deriving citizenship. No custody requirement is enumerated. As the Second Circuit has instructed, " the general definition of 'child' [in the INA] cannot
trump" a plain reading of § 1432(a)(3). Langhorne, 377 F.3d at 180; see also Anderson v. Holder, 673 F.3d 1089, 1097 n.8 (finding that the general definition of child in § 1101(c) did not trump the more specific requirements of § 1409(a)). Equally important, § 1432(a)(3) would make no sense if it contained a custody requirement. In order for a child in Simpson's shoes to derive citizenship, he must be (1) born outside of the United States, (2) born out of wedlock, (3) not legitimated by his birth father, (4) under the age of sixteen years at the time of his mother's naturalization, and (5) residing in the United States as a legal permanent resident at the time of his mother's naturalization. It would be make little sense to require the child to have been in the custody of the legitimating parent -- here, the birth father -- when § 1432(a)(3) expressly requires the child not to have been legitimated by his birth father if he is to derive citizenship from his mother. Indeed, importing the custody requirement would wholly undermine the purpose underlying the derivative citizenship statute: single ...