Khalid v. Sessions

Citation: Not availableDocket: 16-3480-ag

Court: Court of Appeals for the Second Circuit; September 13, 2018; Federal Appellate Court

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Petitioner Mohammed Hassan Faizan Khalid sought review of the Board of Immigration Appeals (BIA) decision affirming an immigration judge's order of removal following his conviction for conspiracy to provide material support for terrorism. Khalid argued he derived U.S. citizenship through his father, who became a citizen shortly after Khalid's arrest and while he was in federal pretrial juvenile detention. The IJ and BIA ruled that Khalid was not in his father's 'physical custody' before turning eighteen, as required by 8 U.S.C. 1431(a) for derivative citizenship.

The Second Circuit determined that the temporary separation due to Khalid's detention did not negate his father's 'physical custody' under the statute. Therefore, Khalid was found to be a U.S. citizen. The court granted the petition for review, vacated the BIA’s decision, and remanded the case with instructions to terminate Khalid's removal proceedings. Judge Jacobs concurred in a separate opinion. The case involved interpretations of the Immigration and Nationality Act concerning the definition of 'physical custody' relevant to citizenship acquisition.

Khalid's removal proceedings concluded with the IJ and BIA determining that his detention ended his father's 'physical custody' over him, making Khalid ineligible for derivative citizenship under 8 U.S.C. 1431(a). However, it was held that Khalid's temporary separation during federal pretrial juvenile detention did not terminate his father's 'physical custody.' State law definitions indicate that a parent's custody persists despite brief separations. The derivative citizenship statute's context suggests that the 'physical custody' requirement aims to maintain strong ties between the child and the naturalizing parent and the U.S., which Khalid had despite his detention. Statutory interpretation principles also support the view that temporary separations do not affect custody status. Moreover, federal pretrial juvenile detention promotes family involvement, reinforcing that Khalid’s father maintained custody. Consequently, Khalid is recognized as a U.S. citizen, leading to the directive for the DHS to end his removal proceedings.

Khalid, an LPR since 2007, born in the UAE to Pakistani parents, engaged in extremist activities online from age 15 until his arrest in July 2011 for aiding recruitment efforts and concealing evidence. He was detained at Berks County Youth Correctional Center following his arrest, and a federal judge ordered his detention under juvenile detention statutes. Khalid's father naturalized as a U.S. citizen on August 17, 2011, while Khalid was still detained. After turning 18, Khalid was transferred to an adult facility. He cooperated extensively with federal investigations, leading to a plea deal for violating 18 U.S.C. 2339A, with the government recommending a reduced sentence due to his assistance.

Khalid was sentenced to five years in prison, which he completed. In late 2015, he was transferred to Immigration and Customs Enforcement custody, leading to removal proceedings based on his conviction. Khalid argued for termination of these proceedings, claiming U.S. citizenship through his father's naturalization, as per 8 U.S.C. 1431(a), and sought deferral of removal under the Convention Against Torture. The Immigration Judge (IJ) denied his motion in April 2016, stating Khalid was not in his father's "physical custody" at the time of his father's naturalization. The Board of Immigration Appeals (BIA) affirmed this decision in September 2016, asserting that a child must reside with the citizen parent to meet the "physical custody" requirement.

Khalid now petitions for review, asserting he cannot be removed as he is a U.S. citizen. The court has jurisdiction to review the legal question of whether Khalid was in his father's "physical custody" under 8 U.S.C. 1431(a) at the time of naturalization. The interpretation of citizenship statutes by the BIA is reviewed de novo. The court examines the text of 8 U.S.C. 1431(a), recognizing ambiguity around "physical custody," which necessitates interpretation through statutory context and history. The statute requires that a child can derive citizenship if one parent is a citizen, the child is under eighteen, and the child is residing in the U.S. in the legal and physical custody of the citizen parent. While acknowledging that naturalization laws should be interpreted under federal standards, the court also emphasizes the importance of state law definitions of "physical custody" for statutory interpretation, given the family law context typically governed by state law.

State law can inform the understanding of 'physical custody' in the context of 8 U.S.C. 1431, despite the statute's uniform federal definition. The government, aligned with the Board of Immigration Appeals (BIA), asserts that a child must be living with the citizen parent at the time of the parent's naturalization or before the child turns eighteen to meet the 'physical custody' requirement. Conversely, Khalid contends that 'physical custody' refers to the legal relationship between parents and minor children, not necessarily tied to actual residence. State definitions of 'physical custody' vary, with some allowing shared custody arrangements that do not require full-time residence with one parent. This diversity in definitions leads to conflicts with the government's stance, particularly regarding the necessity of actual residency for 'physical custody.' The BIA's interpretation, which necessitates Khalid's residence with his father during a specific time frame, is narrower than typical state law applications, which usually do not limit 'physical custody' to a brief period following naturalization. Ultimately, while state law definitions provide some insights, they are inconclusive in determining the meaning of 'physical custody' under the federal statute.

Indicators of the statute's meaning are explored to clarify the term "in the legal and physical custody of the citizen parent." The government posits that this phrase is a grammatical limitation related to "the child is residing" in 1431(a)(3). However, "physical custody" is recognized as a term of art, and state law suggests that a parent may "have" physical custody or a child may be in a parent's physical custody without being physically present with that parent. This understanding counters the government's grammatical interpretation and does not impact the petition's outcome. 

The current derivative citizenship statute was enacted through the Child Citizenship Act (CCA) of 2000, which liberalized conditions for the automatic naturalization of children of U.S. citizen parents. Notably, it simplified the citizenship process for LPR children with married LPR parents, enabling citizenship through only one parent's naturalization. The "physical custody" requirement was introduced to ensure the child's interests align with the United States by maintaining a connection with the naturalizing parent. The CCA requires that for a child to derive citizenship, the naturalized parent must have "legal and physical custody" and the child must be residing in the U.S. This contrasts with previous laws that required both parents to naturalize or specified conditions for custody in separated families. The CCA facilitates citizenship for children of married parents without separation, as long as one parent naturalizes. Prior laws only addressed custody in the context of separated parents, emphasizing that a child in the legal custody of a non-naturalizing parent would not gain citizenship.

Congress introduced the term "physical custody" in the CCA, establishing a custody requirement specifically for married parents. This amendment aims to ensure that a child's "real interests" are connected to the United States through the naturalizing parent. The previous statute allowed for derivative citizenship based on either both parents naturalizing or, in cases of separation, the child's strong connection to the naturalizing parent through "legal custody." The CCA mandates that a child acquires citizenship only if in the custody of the naturalizing parent, reinforcing the necessity of a genuine connection between the child and the U.S. citizen parent.

Historical context shows that courts, including the BIA, previously evaluated derivative citizenship claims based on which parent had actual, uncontested custody, ensuring that citizenship was granted only when the naturalizing parent had a meaningful relationship with the child. The CCA builds on this foundation, reflecting Congress's intent to complicate the process for aliens seeking citizenship and to safeguard the interests of children who genuinely reside in the U.S. 

The statutory history supports interpreting "physical custody" as a means to confirm a child’s connection to the U.S. citizen parent. There is no evidence that Congress intended to change this requirement with the CCA. Khalid's situation exemplifies this intent; he maintained a strong connection with his U.S. citizen father while living in the U.S., thus fulfilling the criteria for acquiring derivative citizenship.

Two canons of statutory interpretation support the conclusion that physical custody under 8 U.S.C. 1431 does not terminate due to a brief separation from the naturalizing parent. First, the derivative citizenship statute, as amended by the CCA, aligns with Congress’s intent to maintain family unity, which is reflected in its liberalization of the Immigration and Nationality Act’s conditions for automatic derivative naturalization of children. This reinforces the idea that family unity is prioritized, even amid a child’s connection to the U.S. Second, there is a long-standing presumption in immigration that any ambiguities should be interpreted favorably for the petitioner. The government's argument that doubts about eligibility should favor the U.S. does not apply to the interpretation of citizenship statutes. The Duarte-Ceri case suggests that ambiguities should be resolved in a way that preserves citizenship, indicating that physical custody should not hinge on a temporary separation like Khalid’s pretrial detention, which lacked a court adjudication of guilt.

Additionally, an inquiry into the custody arrangement at the time of the parent's naturalization is necessary, which the BIA failed to perform. The BIA erroneously concluded that a child must reside with the U.S. citizen parent at or after the parent's naturalization. The nature of Khalid’s pretrial detention supports the argument that he met the physical custody requirement. The Juvenile and Delinquency Prevention Act of 1974 outlines a preference for maintaining the juvenile’s connection to family during detention. It mandates immediate notification of parents upon a juvenile's arrest and stipulates that juveniles should be released to their parents unless specific safety concerns exist. If detention is ordered, it must be conducted in a manner that protects the juvenile’s welfare.

Detention of juveniles should occur in a foster home or community facility close to their home, reflecting the Juvenile Delinquency Prevention Act's (JDPA) emphasis on maintaining parental involvement during detention. The JDPA indicates a strong preference for continued parental care for juveniles charged with federal offenses. Concerns arise regarding the government's interpretation of "physical custody," which could improperly delegate the determination of a child’s citizenship status to the pretrial detention decisions made by magistrates or judges. This approach may conflict with Congress's comprehensive immigration and naturalization framework and could lead to arbitrary outcomes, as citizenship eligibility should not hinge on factors unrelated to citizenship. The JDPA allows judges to consider a juvenile's likelihood of appearing at future court hearings when deciding on detention, which could further complicate citizenship determinations. The discussion excludes scenarios where a juvenile has been adjudicated guilty and imprisoned, as those circumstances might necessitate a different analysis regarding physical custody under immigration law. Lastly, the Board of Immigration Appeals’ (BIA) interpretation is criticized for potentially having negative implications for the citizenship of other lawful permanent resident children under varying circumstances. For instance, a boarding student could be denied citizenship derived from a naturalizing parent if they do not return home before turning eighteen.

A student abroad may be denied U.S. citizenship if their parent naturalizes while they are away, particularly if the student turns eighteen during that time, according to the Board of Immigration Appeals (BIA). This interpretation does not consider individual circumstances regarding the parent’s custody or the child's separation from the parent, which is viewed as inconsistent with the statute's intent. In this case, it was determined that Khalid's brief pretrial juvenile detention did not hinder his ability to meet the "physical custody" requirement for derivative citizenship under 8 U.S.C. § 1431(a). Thus, Khalid is granted U.S. citizenship due to his father's naturalization in 2011. The BIA's decision was vacated, and Khalid's removal proceedings were instructed to be terminated. Judge Jacobs expressed concurrence but noted Khalid's unsavory actions, highlighting that Khalid's citizenship was derived from his father’s custody, which was maintained despite his detention. The ruling is deemed specific and not applicable to broader situations.