08-6128-ag
Duarte v. Holder

                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                             August Term 2009

Argued: January 14, 2010                 Decided: December 6, 2010

                           Docket No. 08-6128-ag



RAMÓN ANTONIO DUARTE-CERI,

                                                    Petitioner,

                                    v.

ERIC H. HOLDER, JR., Attorney General
of the United States,*

                                                    Respondent.



Before:     HALL, LIVINGSTON, and CHIN,** Circuit Judges.

      Judge LIVINGSTON dissents in a separate opinion.

            Petition for review of a decision of the Board of

Immigration Appeals denying a motion to reopen removal

proceedings.       Petitioner contends that his removal is improper

because he is a U.S. citizen by operation of a former provision

of the Immigration and Nationality Act.         We TRANSFER the

proceedings to the district court for factual findings and HOLD

IN ABEYANCE the petition for review.



      *
          Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is automatically
substituted for former Attorney General Michael B. Mukasey.
      **
          At the time of oral argument, Judge Chin was a District
Judge sitting by designation.
                          AMY V. MESELSON (Steven Banks, Adriene
                               L. Holder, Scott A. Rosenberg, Jojo
                               Annobil, and Maria Navarro, on the
                               brief), The Legal Aid Society, New
                               York, NY, for Petitioner.


                          YAMILETH G. HANDUBER (Tony West, Terri
                               J. Scadron, and Corey L. Farrell,
                               on the brief), U.S. Department of
                               Justice, Washington, DC, for
                               Respondent.

CHIN, Circuit Judge:

          On June 14, 1973, petitioner Ramón Antonio Duarte-Ceri

("Duarte") was born in the Dominican Republic.    On June 14, 1991

-- eighteen years later to the day -- Duarte's mother was

naturalized as a U.S. citizen in New York.    The parties and the

Immigration Judge below assumed that Duarte was born in the

evening and that his mother was naturalized in the morning.      The

question presented is whether Duarte was still "under the age of

eighteen years" when his mother took the naturalization oath.     If

so, Duarte acquired derivative U.S. citizenship from his mother

by operation of law, and he is not subject to removal from the

United States.   If not, he is not a U.S. citizen, and he will be

deported to the Dominican Republic.    We hold, on the assumed

facts, that Duarte was still "under the age of eighteen years"

when his mother was naturalized.   Because there has been no

factual finding as to the actual timing of Duarte's birth,

however, we transfer the case to the district court for a "new

hearing on the nationality claim," pursuant to 8 U.S.C. §

1252(b)(5)(B).


                               - 2 -
                         STATEMENT OF THE CASE

A.   The Facts

           In the proceedings below, the parties assumed the

following facts:

           Duarte was born in the Dominican Republic on the

evening of June 14, 1973.    He was admitted to the United States

as a lawful permanent resident in 1981, when he was eight years

old.   On July 24, 1989, Duarte's parents divorced in New York.

The divorce decree granted Duarte's mother, Carmen Paula Duarte,

sole custody of Duarte and his younger brother.    Duarte was

sixteen years old when his mother applied for citizenship on

February 5, 1990.    Her application was granted on March 15, 1991,

and she took the oath of citizenship on the morning of June 14,

1991 -- the same day as Duarte's eighteenth birthday.

           Between 1989 and 1995, Duarte was arrested at least

three times.     In 1990, he was charged with assault, and sentenced

as a youthful offender.    In 1991, Duarte pled guilty to

possessing stolen property.    Then, in 1994, Duarte pled guilty to

attempted sale of a controlled substance.    On April 14, 1995, the

Immigration and Naturalization Service served Duarte with an

Order to Show Cause, charging that he was subject to deportation

as a non-citizen convicted of a controlled substance offense and

an aggravated felony.     See 8 U.S.C. § 1227(a)(2)(B)(i)

(controlled substance conviction); 

(aggravated felony conviction).     Duarte admitted the allegations

against him, and applied for a waiver of excludability.     On

                                 - 3 -
February 24, 1997, the Immigration Judge ("IJ") denied the

application for a waiver, and ordered Duarte deported to the

Dominican Republic.   The Board of Immigration Appeals (the "BIA")

affirmed on September 5, 2001.
B.   Procedural History

           Starting in November 2004, Duarte pursued a variety of

procedural strategies to press his argument that he is actually a

U.S. citizen by operation of former section 321(a) of the

Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1432(a)

(1999), repealed by Pub. L. 106-395, § 103(a), 114 Stat. 1631,

1632 (2000).   That provision grants derivative citizenship to

certain children whose parents are naturalized while they are

still "under the age of eighteen years."    Duarte's mother was

naturalized on the morning of June 14, 1991.     Duarte argues that

he qualifies for derivative citizenship because he was born in

the evening, and he did not actually reach the age of eighteen

years until the evening of June 14, 1991.

           Though the BIA did reopen Duarte's case and remand to

the IJ on one occasion to consider this issue, the IJ eventually

ruled that the precise hour of birth was not relevant to the

derivative citizenship inquiry because Duarte "was 18 when that

clock moved past midnight [on June 14, 1991]."    As a consequence,

the IJ did not make any findings of fact as to what time of day

Duarte was born on June 14, 1973.    On appeal, the BIA agreed with

the IJ that the precise timing was not relevant, concluding that

"in computing the child's age for derivative citizenship purposes

                                 - 4 -
under the applicable statute, the designated age of maturity will

be attained at 12:01 a.m. on the applicable anniversary day."

           Duarte has also filed an application for citizenship

with U.S. Citizenship and Immigration Services ("USCIS"), a

federal habeas corpus petition, and several more motions to

reopen at the BIA.   USCIS denied Duarte's application, and the

Administrative Appeals Office dismissed Duarte's appeal from the

denial.   The federal district court dismissed the habeas

petition, concluding that it did not have jurisdiction over the

matter.   Duarte-Ceri v. Napolitano, No. 07 Civ. 500A (RJA), 

(W.D.N.Y. June 23, 2009).

           On October 23, 2008, the BIA declined to exercise its

sua sponte authority to reopen Duarte's case another time.

Duarte is now before this Court on a petition for review from the

BIA's decision declining to reopen removal proceedings.
                            DISCUSSION

A.   Jurisdiction

           Duarte's claim to derivative citizenship presents an

issue of law over which we have jurisdiction.   See 8 U.S.C. §

1252(a)(2)(D) (judicial review preserved as to constitutional

claims or questions of law); 

("If the

petitioner claims to be a national of the United States and the

court of appeals finds from the pleadings and affidavits that no

genuine issue of material fact about the petitioner's nationality

is presented, the court shall decide the nationality claim.").

           Although Duarte's claim comes to us in the posture of a

                               - 5 -
petition for review from the BIA's refusal to reopen removal

proceedings sua sponte -- a discretionary decision that is

normally not reviewable by the Courts of Appeals, see Ali v.

Gonzales, 

, 518 (2d Cir. 2006) -- here, Duarte's

legal claim encounters no jurisdictional obstacle because the

Executive Branch has no authority to remove a citizen.    An

assertion of U. S. "citizenship is thus a denial of an essential

jurisdictional fact" in a deportation proceeding.     Ng Fung Ho v.

White, 

, 284 (1922); see also Frank v. Rogers, 

, 890 (D.C. Cir. 1958) ("Until the claim of citizenship

is resolved, the propriety of the entire proceeding is in

doubt.").
B.   Merits

            To resolve the legal question presented, we assume the

facts assumed by the parties and the IJ below -- that Duarte was

born the evening of June 14, 1973 and his mother was naturalized

the morning of June 14, 1991.

            "To determine whether a petitioner obtains derivative

citizenship, the court "appl[ies] the law in effect when

[petitioner] fulfilled the last requirement [to qualify]."

Ashton v. Gonzales, 

, 97 (2d Cir. 2005).    At the time

Duarte's mother received her citizenship in 1991, section 321(a)

of the INA provided, in relevant part:

       A child born outside the United States of alien
       parents . . . becomes a citizen of the United
       States upon fulfillment of the following
       conditions: . . .


                                - 6 -
         (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 unmarried and under the age of eighteen
         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 . . . naturalized under clause . . . (3).

8 U.S.C. § 1432(a) (emphasis added) (repealed 2000).3

            Duarte meets condition (3) because at the time his

mother was naturalized, she had sole legal custody of him under a

valid divorce decree.    He also meets condition (5) because he

began to reside in the United States as a lawful permanent

resident in 1981, when he was eight years old.    In terms of

condition (4), Duarte was unmarried at the time of his mother's

naturalization.    The question we must address is whether Duarte

still qualified as "under the age of eighteen years" when his

mother was naturalized on the morning of his eighteenth birthday.

            The language of the statute is ambiguous.   The phrase

"under the age of eighteen years" is susceptible to two meanings.

On one hand, it could refer to an applicant who has not yet

reached the eighteenth anniversary of his birth.    Under this

interpretation, Duarte's claim fails, for he had reached the

eighteenth anniversary of his birth when his mother was


     3
            Subsections (1) and (2) are not relevant to Duarte's
petition.

                                - 7 -
naturalized.    On the other hand, it could refer to an applicant

who has not yet lived in the world for eighteen years.   Under

this interpretation, on the assumed facts, Duarte's claim

prevails, for, as a matter of biological fact, on the morning of

June 14, 1991, Duarte had not yet lived for eighteen years.

Rather, he had lived approximately seventeen years, 364 days, and

twelve hours.

          Faced with two plausible readings of the statutory

language, and a congressional direction to "decide the

nationality claim," we conclude that the circumstances of this

case and principles of statutory construction require us to adopt

the interpretation that preserves rather than extinguishes

citizenship.2

           First, on the assumed facts, as a factual matter


     2
          Although the Government did not argue in its brief that
the BIA's interpretation of former INA § 321(a) was entitled to
deference under Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 

(1984), it did so in a subsequent
submission pursuant to Rule 28(j) of the Federal Rules of
Appellate Procedure. We reject the argument. "While the BIA's
interpretation of immigration statutes is generally entitled to
Chevron deference, interpretations in non-precedential
unpublished BIA decisions . . . are not so entitled." Dobrova v.
Holder, 

, 301 (2d Cir. 2010) (citing Mendis v. Filip,

, 338 (2d Cir. 2009)). The BIA's 2008 decision in
Duarte's case is a non-precedential, unpublished decision.
Indeed, the BIA has never formally codified the view expressed in
its decision in this case -- namely, that the "age of maturity
will be attained at 12:01 a.m. on the applicable anniversary day
(21st, 18th, or 16th) of the child's birth." In re Ramon Antonio
Duarte-Ceri, No. A37 161 007 (B.I.A. Nov. 21, 2005). Instead, in
the BIA's only published decision in which the agency encountered
the situation we face today -- where a crucial event occurs on
the same day as the applicant's birthday -- the BIA took a
lenient view. See Matter of L-M- and C-Y-C-, 4 I. & N. Dec. 617
(B.I.A. Feb. 20, 1952). We discuss this case more thoroughly
infra.

                                - 8 -
Duarte had not lived eighteen years when his mother was

naturalized.   Under the BIA's decision, he would be deported only

because of the application of a legal fiction -- that he turned

eighteen years of age at the stroke of midnight on the eighteenth

anniversary of his birth.

          Second, the Supreme Court has long held that "whenever

it becomes important to the ends of justice, . . . the law will

look into fractions of a day, as readily as into the fractions of

any other unit of time."    Town of Louisville v. Portsmouth Sav.

Bank, 

, 474 (1881); accord Taylor v. Brown, 

, 645-46 (1893) ("as to the general doctrine that the law does

not allow of fractions of a day, it is settled that, when

substantial justice requires it, courts may ascertain the precise

time when . . . an act [is] done").     The legal fiction that a day

is indivisible is a rule of convenience that is satisfactory only

as long as it does not operate to destroy an important right.

See In re Gubelman, 

, 930 (2d Cir. 1925).     "There is

no indivisible unity about a day which forbids us, in legal

proceedings, to consider its component hours, any more than about

a month, which restrains us from regarding its constituent days.

The law is not made of such unreasonable and arbitrary rules."

Portsmouth Sav. 

.     In the bankruptcy

context, for example, courts have long considered fractions of

days to determine certain rights.3


     3
          See, e.g., Vanco Trading, Inc. v. Monheit (In re K
Chemical Corp.), 

, 95-96 (Bankr. D. Conn. 1995)

                                - 9 -
            Third, here, it is important to the ends of justice to

parse the day into hours, for "the most precious right" of

citizenship is at stake.    Kennedy v. Mendoza-Martinez, 

, 159 (1963).    "The stakes are indeed high and momentous,"

Delgadillo v. Carmichael, 

, 391 (1947), for

"deportation is a drastic measure and at times the equivalent of

banishment or exile."    Fong Haw Tan v. Phelan, 

, 10

(1948).    If we abide by the legal fiction that a day is

indivisible for these purposes, then Duarte forfeited his right
to be a U.S. citizen and he will be deported.    And although he

grew up in the United States and his mother, brother, and

children are all U.S. citizens, he will be separated from them.

            We cannot, and do not, contest that in "everyday speech

and writing," people often use the phrases "under the age of

eighteen" and "before one's eighteenth birthday" interchangeably.

This linguistic imprecision is a matter of convenience -- related

to the legal fiction that a day is indivisible -- and in the vast

majority of contexts, it simply does not matter one way or
another.    In particular, it is significant that in most contexts,


(holding that although fractions of a day are generally
disregarded in court proceedings, "the fractionalization approach
is uniformly utilized in a wide range of Bankruptcy Code disputes
involving temporal concepts"); In re Dejay Stores, Inc., 220 F.
Supp. 497, 501 (S.D.N.Y. 1963) (where two bankruptcy petitions
were filed two minutes apart on the same day, holding that "legal
fiction that a day is an indivisible period of time" should be
disregarded where ignoring the time differential would deprive
first petitioning creditors of right to nominate and elect
trustee). Though the dissent argues that bankruptcy is the only
context in which the law parses days, as we discuss herein, this
is not correct.

                               - 10 -
an individual gains a right or privilege when he reaches the "age

of eighteen" -- to take the dissent's examples:    he is permitted

to buy lottery tickets, work in a public school, sell alcoholic

beverages, visit strip clubs, and, if he is a United States

citizen, he may vote or serve as a juror.    Here, Duarte stands to

suffer a great loss, predicated on a rule of convenience.     That

it may be somewhat inconvenient to calculate Duarte's precise age

should not be a deterrent because circumstances like these are

not common occurrences.

            To the extent that the dissent argues that "the ends of

justice" is too malleable a standard for courts to apply, we

disagree.    Courts apply this standard in contexts as varied as

the grant of a continuance in a criminal prosecution, see 18

U.S.C. § 3161(h)(7)(A), the application of the hearsay rule, see

Chambers v. Mississippi, 

, 302 (1973), the

adjudication of successive habeas claims, see Schlup v. Delo, 

, 320 (1995), and the relaxation of procedural rules, see

Schacht v. United States, 

, 64 (1970).    In short,

courts are entrusted with determinations based on the "ends of

justice" each and every day; indeed, such determinations are at

the heart of judicial decision-making, preventing mechanical

interpretations of rules from devolving into injustice.

            In the immigration context, there is a long-standing

presumption to construe "any lingering ambiguities" in favor of

the petitioner.    INS v. Cardoza-Fonsesca, 

, 449

(1987).   Here, Congress enacted the derivative citizenship


                               - 11 -
statute to ensure that "alien children whose real interests were

located in America with their custodial parent, and not abroad,

should be automatically naturalized."   Bustamante-Barrera v.

Gonzales, 

, 397 (5th Cir. 2006) (internal quotation

marks omitted).   The statute "implements the underlying intention

of our immigration laws regarding the preservation of the family

unit."   H.R. Rep. No. 82-1365, at 24 (1952), as reprinted in 1952

U.S.C.C.A.N. 1653, 1680.   It is consistent with Congress's

remedial purposes, therefore, to interpret the statute's

ambiguity with leniency, and we should interpret the statute here

in a manner that will keep families intact.

          It is noteworthy that the statute did not provide that

a parent's naturalization had to take place "before the child

attains his eighteenth birthday" or "prior to the child's

eighteenth birthday."   This language would be unambiguous because

the entirety of June 14, 1991 was Duarte's eighteenth birthday --

from 12:00 a.m. until 11:59 p.m.   No matter what time Duarte was

born, his mother was not naturalized "prior to his eighteenth
birthday."   Indeed, Congress has actually employed similar

unambiguous age-related phrasing elsewhere in the INA.     See,

e.g., 8 U.S.C. § 1483(b) ("A national . . . shall not be deemed

to have lost United States nationality by the commission, prior

to his eighteenth birthday, of any of [enumerated acts]."); 

(referring to certain conditions that must be
performed "no later than [one's] twenty-fifth birthday" to

qualify as a "special immigrant"); see also 18 U.S.C. § 5031


                              - 12 -
("For the purposes of this chapter, a 'juvenile' is a person who

has not attained his eighteenth birthday.").     On the other hand,

if the words "under the age of eighteen years" are given their

literal meaning, Duarte was eligible to become a citizen

derivatively because he was still "under the age of eighteen

years" when his mother was naturalized -- he apparently had lived

only for approximately seventeen years, 364 days, and twelve

hours.

           We cannot simply dismiss the difference in language
between former INA § 321(a) ("a child . . . under the age of

eighteen years") and 18 U.S.C. § 5031 ("a person who has not

attained his eighteenth birthday") as inadvertent or immaterial.

In 1948, Congress took the affirmative step of eliminating

ambiguity in 18 U.S.C. § 5031 by amending it to replace the

phrase "seventeen years of age or under" with "who has not

attained his eighteenth birthday."     18 U.S.C. § 5031 Notes to

1948 Acts.   It did so after a district judge wrote to express

"the necessity of a definite fixing of the age of [a] juvenile."

have made a similar change to the statutory

language here, but it did not.

           In 1952, the BIA, in a published decision, interpreted

a citizenship statute that required a child born to U.S. citizens

outside the United States to take up residence in the United

States "by the time he reaches the age of 16 years" to retain his
U.S. citizenship.   See In re L-M- and C-Y-C-, 4 I. & N. Dec. at

618 (quoting Nationality Act of 1940 § 201(g)).     The two

                              - 13 -
appellants returned to the United States on their sixteenth

birthday, one at 4 a.m. and the other at 8 a.m.   The government

argued that they were too late because they had turned sixteen at

12:01 a.m., and thus arrived after they had reached the age of

sixteen.   

rejected the argument, and ruled that it

was sufficient that the appellants arrived on the day they turned

sixteen.   It held that, when considering "the great privilege of

citizenship," "the method of arriving at the computation is to be

in the interest of the person affected by it."    

  The
BIA concluded that:

           A divestiture of American citizenship should
           not be predicated upon an ambiguity. Where
           the language of the statute is capable of
           more than one construction, that construction
           is favored by the law which will best
           preserve a right or prevent a forfeiture.

           These principles apply with equal force here.   Where a

statute conferring citizenship derivatively is susceptible of two

interpretations, the only difference being the divisibility of a
unit of time, the law favors the interpretation that preserves

the right of citizenship over the interpretation that forfeits

it.   On the assumed facts, we conclude that Duarte was "under the

age of eighteen years" when his mother was naturalized.
C.    Transfer

           In the context of removal proceedings, claims that a


      1
          The dissent notes that this case has not frequently
been cited. Likely, this is because it is such a rare
circumstance that the final qualifying citizenship event occurs
on the same day as the applicant's crucial birthday.

                               - 14 -
petitioner is a U.S. national are governed by 8 U.S.C. §

1252(b)(5).   The court of appeals "shall" decide such nationality

claims if it "finds from the pleadings and affidavits that no

genuine issue of material fact about the petitioner's nationality

is presented.   8 U.S.C. § 1252(b)(5)(A).   If, however, the court

of appeals concludes that "a genuine issue of material fact about

the petitioner's nationality is presented, the court shall

transfer the proceeding to the district court of the United

States for the judicial district in which the petitioner resides
for a new hearing on the nationality claim and a decision on that

claim as if an action had been brought in the district court

under section 2201 of Title 28."   8 U.S.C. § 1252(b)(5)(B).   We

determine the existence of a genuine issue of material fact for

these purposes using the same principles employed on a Rule 56

motion for summary judgment.   See Agosto v. INS, 

,

754 (1978); Ayala-Villanueva v. Holder, 

, 738 (9th

Cir. 2009).

          In the removal proceedings, the parties and the IJ
assumed that Duarte was born the evening of June 14, 1973, but

the IJ determined there was no need for factual findings in that

respect because the time of the birth was legally insignificant.

Duarte submitted affidavits from his mother as well as a nurse

who purportedly participated in the delivery stating that Duarte

was born at approximately 9 p.m. on June 14, 1973.    The
Government did not submit any evidence to contradict the

affidavits, but there was no reason for it to do so because of

                               - 15 -
the IJ's ruling on the legal question.5   The issue is now

squarely presented because of our conclusion that the precise

timing of Duarte's birth on June 14, 1973, is relevant.

Accordingly, we transfer the matter to the United States District

Court for the Western District of New York for a new hearing on

Duarte's nationality claim, pursuant to 8 U.S.C. §

1252(b)(5)(B).6
                           CONCLUSION

          For the reasons set forth above, we TRANSFER this
proceeding to the United States District Court for the Western

District of New York, and HOLD IN ABEYANCE his petition for

review.




     5
          We note that in its brief on appeal, the Government
states that "there is no genuine issue of material fact regarding
Duarte's citizenship claim" and that "the issues presented on
this citizenship claim are purely legal." Under the
circumstances, we do not construe this as a concession that
Duarte in fact was born in the evening on June 14, 1973.
     6
          The most recent indication in the record is that Duarte
"resides" at the Buffalo Detention Facility in Batavia, New York,
in the Western District of New York.

                             - 16 -
DEBRA ANN LIVINGSTON, Circuit Judge, dissenting:

     Petitioner Ramon Antonio Duarte-Ceri (“Duarte”) is a 37-year-

old native of the Dominican Republic who entered this country as a

lawful permanent resident in 1981, when he was eight years old.

Brought here by his parents as a child, Duarte could have applied

to be a citizen at any time on or after June 14, 1991, when he

turned eighteen.   Unfortunately, he never did so.           Instead, Duarte

compiled an “extensive criminal history in this country, including

convictions for violent and controlled substance crimes,”               In re

Ramon Antonio Duarte-Ceri, No. A037 161 007 (B.I.A. Sept. 5, 2001),

that now renders him ineligible for citizenship.                   Duarte was

ordered deported by an Immigration Judge in February 1997 and this

decision was affirmed by the Board of Immigration Appeals (“BIA”)

in 2001.   Duarte did not leave the country, nor did he appeal the

BIA decision to this Court, but he did file an untimely motion to

reopen some three years later, in 2004.            In this motion he argued

for the first time that he cannot be deported because he is a

United States citizen by virtue of his mother’s naturalization on

June 14, 1991, the day he turned eighteen.           The BIA rejected this

argument   in   2005,    and    an   appeal   of   that   BIA   decision   was

voluntarily dismissed before this Court.             The Board rejected a

later motion to reopen, prompting the present petition for review.

     This is, or should be, a straightforward case of statutory

interpretation.         As     relevant   here,    the    former   derivative

citizenship statute applicable in Duarte’s case provides that a

child born outside the United States of non–U.S. citizen parents


                                     - 1 -
becomes a citizen upon the naturalization of a parent when: (1) the

naturalized parent is the parent “having legal custody of the child

when there has been a legal separation of the parents”; (2) the

child    is   residing   here    “pursuant   to    a    lawful   admission   for

permanent residence at the time of the naturalization”; and finally

(3) “such naturalization takes place while such child is unmarried

and under the age of eighteen years.” 8 U.S.C. § 1432(a) (emphasis

added)    (repealed      2000)    (hereinafter     “derivative     citizenship

statute” or “§ 1432(a)”).         The majority concludes that Duarte was

“under the age of eighteen years” on June 14, 1991, the day he

turned eighteen, until the anniversary of the very moment of his

birth eighteen years before in 1973.              Accordingly, the majority

determines that Duarte became a citizen on June 14, 1991 so long as

his mother’s naturalization that day took place before the time at

which he was born eighteen years earlier.              Because I cannot concur

in this novel and utterly implausible reading of the statute, I

respectfully dissent.       The petition for review should be denied.

                                     * * *

     In interpreting a statute, we give its terms, read in their

appropriate context, their ordinary, common meaning and when the

text, thus read, provides an answer, our work is complete.                   See,

e.g., Bilski v. Kappos , 

, 3226 (2010) (“[I]n all

statutory construction, unless otherwise defined, words will be

interpreted     as    taking     their   ordinary,      contemporary,   common

meaning.” (internal quotation marks and alteration omitted)); Conn.

Nat’l Bank v. Germain, 

, 254 (1992) (“When the words of


                                     - 2 -
a statute are unambiguous . . . this first canon [of statutory

construction] is also the last: judicial inquiry is complete.”

(internal quotation marks omitted)).           Where the language of the

statute     makes   its   meaning   clear,    “we   [should]      decline   to

manufacture     ambiguity   where   none    exists.”     United    States   v.

Batchelder, 

, 122 (1979) (internal quotation marks

omitted).      We should not prefer an implausible reading of a

statute’s language to its “ordinary, contemporary, common meaning,

absent    an   indication   Congress   intended”    a   different    reading.

Williams v. Taylor, 

, 431 (2000) (internal quotation

marks omitted).

     These incontrovertible principles should end this case because

the ordinary, common meaning of the phrase “under the age of

eighteen” is “before one’s eighteenth birthday.” This is reflected

in everyday speech and writing.1            Judges have also found this

     1
       By way of example: (1) “CC Sabathia leads all major
leaguers under the age of 30 in career wins . . . . Who is the
last one to have as many wins as Sabathia before his 30th
birthday?” Peter Botte et al., Teix: No Respect, New York Daily
News, May 19, 2010 at 58; (2) “Most toddlers under the age of two
have already spent some time in front of the TV, . . . even
though it is recommended they get no screen time before their
second birthday.” Laura Stone, “Dangerous” Inactivity Puts
Children at Risk, Ottawa Citizen, Apr. 27, 2010, at A8; (3) “You
need a special salmon license. That license will cost you . . .
$5 if you’re a non-resident under the age of 16. Mainers who
haven’t reached their 16th birthday are exempt from any fee.”
John Holyoke, Any-Deer Permits Are More Hope for Hunters, Bangor
Daily News, Sept. 9, 2006, at D1; (4) “[B]efore his 30th birthday
earlier this month he was Britain’s richest sportsman under the
age of 30.” What’s in a Name . . . , The Irish Times, Apr. 18,
2005, at 7; (5) “More than half of women and almost three-
quarters of men have had intercourse before their 18th
birthday[.] [I]n the mid-1950s, by contrast, just over a quarter
of women under age 18 were sexually experienced . . . .” Allan
Gutmacher Inst., Sex and America’s Teenagers 8 (1994).

                                    - 3 -
obvious in construing statutes that use the phrase “under the age”

— including the very statute the majority purports to construe.

See, e.g., Poole v. Mukasey , 

, 265 (2d Cir. 2008)

(noting in context of § 1432(a) derivative citizenship claim that

“the final inquiry focuses on whether Poole’s mother received her

citizenship prior to Poole’s eighteenth birthday.”); Bustamante-

Barrera v. Gonzales, 

, 390 (5th Cir. 2006) (“Prior to

its amendment . . . , § 1432(a) granted derivative citizenship to

a child born outside the United States to alien parents if, before

that child’s eighteenth birthday, [the statute’s requirements were

satisfied].”); Tabucbuc v. Ashcroft, 84 F. App’x 966, 968 (9th Cir.

2004) (mem.) (conditions set forth in 8 U.S.C. § 1432(a) must be

“met prior to [the petitioner’s] eighteenth birthday”); Batista v.

Ashcroft, 

, 16 (1st Cir. 2001) (“The remaining question

is whether the evidence submitted by petitioner . . . present[s] a

genuine issue of material fact as to whether [the requirements for

derivative      citizenship   were    satisfied]     prior    to   Batista’s

eighteenth birthday.”); Wedderburn v. INS, 

, 796 (7th

Cir. 2000) (observing that pursuant to § 1432(a), “[c]hildren born

outside   the    United   States,    of   alien    parents,   acquire   U.S.

citizenship automatically if before their eighteenth birthday they

move to the United States, and one or both of their parents become

U.S. citizens”).       Duarte was therefore not “under the age of

eighteen” for purposes of § 1432(a) when his mother was naturalized

on June 14, 1991 because, on the facts the majority assumes to be

true, he was eighteen years old that entire day.


                                     - 4 -
     Duarte was eighteen years old the morning of June 14, 1991,

not only for the purposes of derivative citizenship, but for every

other purpose recognized by law, from momentous to trivial. In New

York, for example, a person who has turned eighteen — from the very

first minute of that significant birthday — can be employed serving

alcoholic beverages,2 get married without his parents’ consent,    3


                                          4
work as a teacher in a public school,         enter a nude dancing

establishment,5 serve on a jury,6 operate a powerboat unaccompanied

in New York waters,7 be sold “dangerous fireworks,”8 apply for any


     2
      N.Y. Alco. Bev. Cont. Law § 100(2-a) (“No retailer shall
employ . . . on any premises licensed for retail sale hereunder,
any person under the age of eighteen years, as a hostess,
waitress, waiter, or in any other capacity where the duties of
such person require or permit such person to sell, dispense or
handle alcoholic beverages . . . .”).
     3
      N.Y. Dom. Rel. Law § 15(2) (“If it shall appear . . . that
either party is at least sixteen years of age but under eighteen
years of age, then the town or city clerk before he shall issue a
[marriage] license shall require the written consent to the
marriage from both parents of the minor or minors . . . .”).
     4
      N.Y. Educ. Law § 3001 (“No person shall be employed or
authorized to teach in the public schools of the state who is . .
. [u]nder the age of eighteen years.”).
     5
      N.Y. Gen. Bus. Law § 390-c(1) (“No person under the age of
eighteen years shall be admitted to any portion of a facility
open to the public wherein performers appear and dance or
otherwise perform unclothed . . . .”).
     6
      N.Y. Judiciary Law § 510 (“In order to qualify as a juror
a person must . . . [b]e not less than eighteen years of age.”).
     7
      N.Y. Nav. Law § 49(1) (“No person under the age of eighteen
years shall operate a mechanically propelled vessel on the
navigable waters of the state . . . .”).
     8
      N.Y. Penal Law § 270.00(2)(b)(ii)-(iii) (provisions
relating to sale of “dangerous fireworks” to “any person who is
under the age of eighteen”).

                              - 5 -
class of adult drivers’ license,9 purchase state lottery tickets,10

and he can no longer be claimed as a dependent child for purposes

of family assistance.11   For purposes of federal law, he can, among

other things, vote in an election held on his birthday. 12    These

examples are by no means a complete catalogue of the numerous times

federal and state statutes use the phrase “under the age of ---” to

denote one who has not yet reached a particular birthday, or

variants of the phrase “reach the age of ---” to denote one who has

reached the birthday in question.   “[T]he reality is that in these

situations,” among many others, “a person is considered by common

practice to be a year older on the first moment of the date of

their birth, rather than the exact hour.”      State v. Yarger, 

, 468 (Oh. Ct. App. 2009) (rejecting criminal defendant’s

argument that he should be considered a “child” under Ohio law when

crime was committed on his birthday but before exact hour of his

birth). These statutes are perfectly clear and unambiguous — or at

least they were so, until today.



     9
      N.Y. Veh. & Traf. Law § 502(2)(b)-(c) (provisions relating
to licenses for which applicant must be “at least eighteen years
of age” to apply absent other qualifications).
     10
       N.Y. Tax Law § 1610(a) (“No [New York State Lottery]
ticket shall be sold to any person under the age of eighteen
years . . . .”).
     11
       N.Y. Soc. Serv. Law § 349(A) (eligibility requirements for
“Family assistance [to] . . . a parent or other relative . . .
for the benefit of a child under eighteen years of age”).
     12
       U.S. Const. amend. XXVI, § 1 (guaranteeing the “right of
citizens of the United States, who are eighteen years of age or
older, to vote”).

                                - 6 -
       The majority finds ambiguity in the derivative citizenship

statute — and presumably would do so with all the countless other

statutes that use the words “under the age,” “reaches the age,” or

some   variant   thereof   —    because   the   words   “under   the   age   of

eighteen,” if “given their literal meaning,” Maj. Op. at 15, could

“refer to [a person] who has not yet lived in the world for

eighteen years,” (Id. at 9).       But I am aware of no reported case —

anywhere, ever — in which a court interpreted the phrase “under the

age of ---” in a statute to mean “before the exact time the

relevant person was born --- years ago.”            To the contrary, the

courts that have directly confronted the question have uniformly

rejected the idea that one’s birth hour is relevant to whether a

person is a certain age on their birthday for the purposes of

statutory construction. See, e.g., State v. Brown, 

,

806-07 (Mo. 1969) (defendant was not subject to jurisdiction of

juvenile court because crime was committed on seventeenth birthday,

albeit two hours prior to defendant’s birth hour, and thus was not

committed “prior to [the defendant’s] having become seventeen years

of age”); 

(collecting numerous cases);

State v. Wright, 

, 680-83 (Kan. Ct. App. 1997) (same);

People v. Anderson, 

, 71-72 (Ill. App. Ct. 1982).

       The lack of support for the majority’s interpretation is

unsurprising,    as   it   is     obviously     contrary   to    the   common

understanding of the statutory text read as a whole. Assuming that

the word “age” might in some unusual circumstances refer to the

precise duration of time that has elapsed since the exact moment of


                                    - 7 -
a person’s birth, the word cannot be so construed when it is used

in the context of a phrase, “under the age,” that is itself used in

the context of a statute that attempts to draw a dividing line

among people of different ages.          And we are obligated to read the

words of statutes not in artificial isolation, as the majority

does, but in their proper context as part of the statute in which

they are found.        See United States v. Morton, 

, 828

(1984); Pettus v. Morgenthau, 

, 296-97 (2d Cir. 2009);

see also John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev.

2387, 2393 (2003) (“[T]he literal or dictionary definitions of

words will often fail to account for settled nuances or background

conventions that qualify the literal meaning of language and, in

particular, of legal language.”).

      The majority’s opinion exemplifies the pitfalls of its unwise

alternative interpretive approach. No reasonable reader would read

the   words   of   §    1432(a)   to    refer   to   a   person’s   so-called

“biological” age, Maj. Op. at 9, when it is absolutely clear from

context that the statute (being a statute) refers to “age” in a

traditional, legal sense — the same sense in which the phrases

“under the age,” “over the age,” “reaches the age,” and the like

are always used when used in statutes.               No reader of a typical

underage drinking law thinks that it means that a person can buy

alcohol on their twenty-first birthday only after the exact minute

and hour at which they were born twenty-one years before.            Cf. N.Y.

Alco. Bev. Cont. Law § 65 (“No person shall sell, deliver or give

away . . . any alcoholic beverages to . . . [a]ny person, actually


                                       - 8 -
or apparently, under the age of twenty-one years . . . .”).      Nor

would a reasonable reader of the Constitution think that if the

polls happened to close before a person’s birth hour when an

election was held on his eighteenth birthday, that this person had

no right to vote earlier in the day.   Cf. U.S. Const. amend. XXVI,

§ 1 (guaranteeing the “right of citizens of the United States, who

are eighteen years of age or older, to vote”).        And yet the

majority finds § 1432(a) susceptible to just such an unreasonable

reading, contrary to any principle of statutory construction of

which I am aware and, indeed, to common sense.

     Relying principally on dicta from an 1881 Supreme Court

opinion that did not involve age but rather the question of when a

law should be deemed enacted, see Louisville v. Sav. Bank, 

, 478 (1881), the majority does not attempt to limit its

reasoning to the construction of statutes relating to citizenship,

nor could it do so plausibly.     As the majority writes, we may

“parse the day into hours,” in spite of clear and unambiguous

statutory language suggesting we may not, whenever it is “important

to the ends of justice.”   Maj. Op. at 12 (emphasis added). 13   The

     13
       The majority seeks support from the fact that bankruptcy
courts “have long considered fractions of days to determine
certain rights,” Maj. Op. at 11, but the cases on which it relies
are simply inapt. Bankruptcy courts parse the day into hours
because they are applying provisions of the Bankruptcy Code that
hinge legal consequences on the order in which specified events
occur — whether, for instance, an expense is incurred before or
after the commencement of a case — and these provisions require
the bankruptcy court to determine the order. See, e.g., Vanco
Trading, Inc. v. Monheit (In re K Chem. Corp.), 

, 94-
96 (Bankr. D. Conn. 1995), cited in Maj. Op. at 11 n.3 (adopting
a “fractionalization” approach to conclude that a debt incurred
by the debtor on the same day that its petition was filed but

                              - 9 -
“ends of justice” is a malleable standard at best, and one that a

court is not empowered to employ to displace clear and unambiguous

statutory language.         Today the majority invokes this standard

because   “citizenship        is    at       stake,”     

   majority’s

methodology       simply   cannot       be     limited    to    that    context.      Why

shouldn’t a statute conferring exclusive jurisdiction on a juvenile

court over all persons whose offenses were committed when they were

“under eighteen years of age” be construed to cover a defendant who

committed criminal acts prior to his exact birth hour on his

birthday?     See, e.g., 

.                           After all,

prosecution as an adult can have “harsh consequences,”                          Ex Parte

Petty, 

, 636 (Ala. 1989) (quoting Baldwin v. State,

, 123 (Ala. Crim. App. 1983)), so perhaps the “ends

of justice” might favor parsing out the day into hours in such a

case.       But    perhaps,        on    the     other     hand,       the    defendant’s

circumstances and the heinousness of the crime suggest he should

face responsibility for his acts as an adult, so parsing would not

serve the “ends of justice.” The result is unknowable applying the

majority’s standard, a state of affairs that the clear language of

§ 1432(a) and the many other statutes using this or similar




before the exact time of filing was not an administrative expense
afforded priority under 11 U.S.C. § 503(b)(1)(A), because by the
terms of the Code such expenses must have been incurred “after
the commencement of the case,” 

(quoting §
503(b)(1)(A))). These provisions are very different from
statutes such as § 1432(a) that clearly and unambiguously set
forth age distinctions using commonly employed phrases.

                                         - 10 -
phrasing cannot support.14

        The majority’s only response to these arguments is that the

commonly understood meaning of “under the age of eighteen” is a

“linguistic imprecision” and “rule of convenience” that should not

be followed in this case.      Maj. Op. at 12-13.     This is so, suggests

the majority, because while in most contexts it makes no difference

precisely when one reaches the “age of eighteen,” in this case it

does.        

  But I know of no principle of statutory

construction      suggesting   that   we   may   depart   from   the   common

understanding of statutory terms — statutory terms that are clear

and unambiguous — simply because we are confronted with a case in

which we believe it is important to do so.         Respectfully, to apply

such a principle, as the majority does, is not an act of statutory

construction but judicial draftsmanship.          And it flies in the face

of the Supreme Court’s admonition that “[a]n alien who seeks

political rights as a member of this Nation can rightfully obtain

them only upon terms and conditions specified by Congress.             Courts

are without authority to sanction changes or modifications; their

duty is rigidly to enforce the legislative will in respect of a

matter so vital to the public welfare.”            INS v. Pangilinan, 

, 884 (1988) (quoting United States v. Ginsberg, 

, 474 (1917)) (internal quotation marks omitted).


       The majority thus misses the point of my argument. I do
        14

not contend that courts will be unable to apply the majority’s
chosen “standard,” but that the language of § 1432(a) cannot
reasonably be interpreted to permit courts to engage in the
indeterminate inquiry the majority undertakes. Contra Maj. Op.
at 13.

                                  - 11 -
      Even if I were to indulge the majority’s view that § 1432(a)

is susceptible to two readings — and it is not — consideration of

the provision in light of related sections of the Immigration and

Nationality      Act   (“INA”)       clearly   shows       that     the   majority   has

rejected the correct reading. Prior to 1952, under the Nationality

Act of 1940, a child born outside of the United States to alien

parents acquired citizenship derivatively if the child’s parents

(or a single parent if the other parent was deceased or did not

have custody of the child following a separation) were naturalized

“while    such    child   [was]       under    the       age   of   eighteen   years.”

Nationality Act of 1940, Pub. L. No. 76-853, § 314, 54 Stat. 1137,

1145-46.     In 1952, Congress repealed the relevant portions of the

Nationality Act and enacted a new version of the derivative

citizenship statute which lowered the relevant age to sixteen

years.    See Immigration and Nationality Act, Pub. L. No. 82-414, §

321(a), 66 Stat. 163, 245 (1952) (“A child born outside of the

United States of alien parents . . . becomes a citizen . . . upon

the      fulfillment      of     [various        conditions,          including      the

naturalization of the relevant parent] while such child is under

the age of sixteen years . . . .”).                  As we noted in Langhorne v.

Ashcroft, 

(2d Cir. 2004), the change created a gap

between the age at which a person could acquire citizenship

derivatively     and   the     age    at   which     a    person     could   apply   for

citizenship on his own:

      Significantly, Section 321(a) [§ 1432(a)] reduced the age
      at which a child could acquire derivative citizenship
      from eighteen (under the 1940 Act) to sixteen. . . . This
      change was problematic, however, for the reason noted by

                                        - 12 -
     the Attorney General in a 1978 letter to the Chair of the
     House Judiciary Committee:

          Currently, a person is not eligible to file a
          petition for naturalization in his own behalf
          under [8 U.S.C. § 1445] until reaching the age
          of 18. Thus, there is a 2-year period during
          which a child is not able to derive
          citizenship   by   reason   of  his   parents’
          naturalization, but is not able to file his
          own petition for naturalization either. The
          only procedure available during this period is
          for the parent or parents to file a formal
          petition for the child’s naturalization . . .
          . This procedure is both cumbersome and
          unnecessary. Young people between the age of
          16 and 18 should be able to derive citizenship
          automatically . . . .

     H.R. Rep. No. 95-1301, reprinted in 1978 U.S.C.C.A.N.
     2301, 2309-10.     Evidently to meet this concern and
     correct   an   unintended   consequence   of   the   1952
     formulation, a 1978 amendment changed the age requirement
     in Section 321(a) from sixteen to eighteen. Act of Oct.
     5, 1978, Pub. L. 95-417, §§ 4-5, 92 Stat. 917.

(citations and alterations omitted).

     Thus, the majority is correct that Congress amended the 1952

version of the derivative citizenship statute in 1978, enacting the

version at issue here, with the “underlying intention” of allowing

children to acquire citizenship derivatively from their parents,

and thereby keep together the family unit.   Maj. Op. at 14.   But it

did so only to ensure that children might acquire derivative

citizenship until they were of the age at which they could file

petitions on their own behalf.   See 8 U.S.C. § 1445(b) (“No person

shall file a valid application for naturalization unless he shall

have attained the age of eighteen years.”).     Because the natural

meaning of the requirement in § 1445(b) that a petitioner must have

“attained the age of eighteen years” is that the petitioner must


                              - 13 -
have turned eighteen on the date the petition is filed, cf.

Commonwealth v. A Juvenile, 

, 1164-65 & n.2 (Mass.

1989) (construing statute referring to “children who attain their

seventeenth birthday” as covering one who “attains the age of

seventeen”), it stands to reason that the language “under the age

of eighteen years” in §1432(a) should be construed as going up to

the day before a petitioner’s rights under § 1445(b) to file a

petition on his own behalf attach.

       One wonders how the majority would interpret § 1445(b) in

light of its holding today.           Both § 1445(b) and § 1432(a) turn on

when the person in question becomes eighteen years old.                        Cf.

(“[T]he overarching statutory scheme

that   was   in   place   .   .   .   was   clearly   keyed   to   the   age   of

eighteen.”).      If the derivative citizenship statute means that

Duarte was still “under the age of eighteen” until the evening of

June 14, 1991, presumably he had not “attained the age of eighteen”

until that time.     Thus, if the majority stands by its methodology,

it must conclude that had Duarte attempted to file a petition for

naturalization on his own behalf on June 14, 1991, he should have

been turned away under § 1445(b) until after the hour on which he

was born.    With respect, this is what comes from using isolated

fragments of legislative history to vary the clear meaning of an

unambiguous statute.       See Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 

, 568 (2005) (“[T]he authoritative statement is

the statutory text, not the legislative history or any other

extrinsic material.       Extrinsic materials have a role in statutory


                                      - 14 -
interpretation only to the extent they shed a reliable light on the

enacting Legislature’s understanding of otherwise ambiguous terms.”

(emphasis added)).

     The majority next purports to find support in the supposed

difference between § 1432(a) and statutes that refer specifically

to “birthdays,” such as 18 U.S.C. § 5031, setting forth the federal

definition of a juvenile.       Maj. Op. at 14-16. See 18 U.S.C. § 5031

(“[A] ‘juvenile’ is a person who has not attained his eighteenth

birthday, or for the purpose of proceedings and disposition under

this chapter for an alleged act of juvenile delinquency, a person

who has not attained his twenty-first birthday . . . .”).                   This

support, however, is anything but substantial.               For the reasons

discussed    above,    any   reasonable   reader,     keeping   in   mind    the

statutes’ contexts and Congress’s evident purpose to draw a useable

age division line, would read the phrases “under the age of

eighteen years” in § 1432(a) and “has not attained his eighteenth

birthday” in § 5031 to be equivalent.               And that, in fact, is

precisely what courts have done.              See, e.g., United States v.

Ramirez, 

, 190-91 (2d Cir. 2002) (construing § 5031 to

mean that the defendant must be “under twenty-one at the time the

juvenile    information      charging   the   crime   is   filed”    (emphasis

added)); United States v. Pool, 

, 1532 (10th Cir.

1991) (“Federal law defines a juvenile as being under the age of 18

. . . .”).

     The    majority    suggests   that   Congress’s       selection   of    the

“birthday” language in § 5031 was a deliberate attempt to avoid the


                                   - 15 -
supposed ambiguity that exists in § 1432(a).                 Maj. Op. at 15-16.

But the only ambiguity that Congress sought to avoid in the federal

definition of a juvenile concerned the question whether “a person

seventeen    years    of   age   or    under,”      which   is   how    the   former

definition read, see Act of June 16, 1938, ch. 486, 52 Stat. 764,

included those persons between their seventeenth and eighteenth

birthdays, or only those persons who had just turned seventeen

years of age.15      Courts have taken and continue to take divergent

views on this question:          “Some courts have found that a clause

specifying a particular age ‘or under’ applies to the full year of

the stated age. . . . Other courts have reached a contrary

interpretation,”      that   one      past,   for    instance,    his    sixteenth

birthday is no longer “a child of the age of sixteen years, or

under.”     State v. Munoz, 

, 140 (Ariz. Ct. App. 2010)

(internal quotation marks omitted); see also State v. Shabazz, 622

     15
       The historical notes to § 5031 indicate that the
“birthday” language was adopted after U.S. District Judge Arthur
J. Tuttle wrote to Congress stressing “the necessity of a
definite fixing of the age of the juvenile.” 18 U.S.C. § 5031
(Notes to 1948 Acts); see also Maj. Op. at 15. Judge Tuttle’s
letter reveals that the ambiguity in the former version of the
juvenile definition resided in the phrase “seventeen years of age
or under,” which left uncertain the status of those persons who
had passed their seventeenth birthday but not yet reached their
eighteenth. “Some people will read [the phrase] and say that he
ceases to be a juvenile just as soon as the hands of the clock
pass midnight on the midnight which ends his seventeenth
birthday. Others read it and say, ‘No, it is a year later. He
continues to be a juvenile until midnight before his eighteenth
birthday.’” Letter from Arthur J. Tuttle to Eugene J. Keogh,
Chairman, Committee on Revision of the Laws, U.S. House of
Representatives (June 24, 1944) (on file in Arthur J. Tuttle
Papers, Bentley Historical Library, University of Michigan).
There is no indication in Judge Tuttle’s letter that he found
ambiguity in the former version of the juvenile statute as it
would apply to those “under” the age of seventeen.

                                      - 16 -
A.2d 914, 918 (N.J. Super. Ct. App. Div. 1993) (collecting cases).

But this is ambiguity in what it means to be sixteen, seventeen, or

some other age, not in what it means to be “under” a given age.

Both sides of this debate agree that the “or under” language is not

ambiguous: it refers to a person before he reaches his birthday and

turns a year older.     See, e.g., 

n.3

(“Undoubtedly, Arizona’s legislature could have expressed its

intent for the cutoff age more precisely by saying ‘under fifteen’

or ‘under sixteen.’   Instead, the legislature used the language

‘fifteen years of age or under’ . . . .”); 

(“We assume

the [legislature] intended to change the intended cutoff age when

it voted to approve the amendment to the bill from ‘under the age

of fifteen’ to ‘a child the age of fifteen years or under.’    Had

the legislature intended to protect only children less than fifteen

years of age, it would have left the proposed wording intact, as

the unmodified version clearly did not apply to any child who had

reached his fifteenth birthday.” (citation omitted));     State v.

Carlson, 

, 673 (Neb. 1986) (“If ‘less than fourteen

years of age’ or ‘under fourteen years of age’ had been used in [a

Nebraska sexual assault statute], the protection of that statute

would terminate when a child reached the 14th birthday.”).

     The majority also seeks support for its construction of §

1432(a) in Matter of L – M – and C – Y – C –, 4 I. & N. Dec. 617

(B.I.A. 1952), a BIA decision never before cited by any federal

court or even relied on by the BIA itself in any of its own

subsequent cases.   Maj. Op. at 16-17.   The case involved a wholly


                              - 17 -
different statutory scheme.     In   L – M – , the statute at issue

provided that the foreign-born child of a U.S. citizen was a

citizen himself at birth, but that citizenship was lost if the

child “ha[d] not taken up a residence in the United States or its

outlying possessions by the time he reache[d] the age of 16 years

. . . .”   L – M –, 4 I. & N. Dec. at 618 (quoting Nationality Act

of 1940, supra, § 201(g), 54 Stat. at 1139).   Thus the question was

whether the petitioners, who were citizens of the United States,

were divested of that citizenship or whether they had complied with

this statutory “return requirement.”      Granted, the BIA rejected

what was perhaps the more natural reading of the statute in favor

of a reading that comported with Congress’s apparent intent that

the statute be applied only to those who “by their own acts, or

inaction, show that their real attachment is to the foreign country

[in which they previously had been living] and not to the United

States.”   

  Thus the petitioners, who clearly evinced

a continued “attachment” to the United States by seeking to return

and arriving on their sixteenth birthdays, were not excluded.   But

this outcome was consistent with other BIA cases, construing the

     16
       The BIA did not, as the majority suggests, hold that “the
method of arriving at the computation is to be in the interest of
the person affected by it” when considering citizenship claims.
Maj. Op. at 16 (quoting L – M –, 4 I. & N. Dec. at 620). The BIA
made this statement only in describing the reasoning of a
different case, In re Babjak, 

(W.D. Pa. 1914), which
involved a question entirely different from the one presented
here: when a statute required a citizenship petition to be filed
“no[] more than 7 years” after the applicant “ha[d] made [a]
declaration of intention,” and the applicant filed his petition
seven years to the day after his declaration, whether the court
had jurisdiction to consider the petition. 

.

                                - 18 -
same or similar provisions, concluding that a citizen child would

not be divested of citizenship even when he did not return but

rather “when [he only] proceeded with due diligence to comply but

his   compliance   with      the    physical    presence   requirement   [was]

prevented by official error or inaction.”                  7 Charles Gordon,

Stanley     Mailman,   &   Stephen      Yale-Loehr,     Immigration   Law   and

Procedure § 93.02(6)(d) (Matthew Bender, Rev. Ed. 2010); see also

(citing cases).            Significantly, moreover, the BIA

has   never   extended     this     reasoning   to   statutes   governing   the

creation of citizenship.           Indeed, L – M – took pains to stress that

the statutory return requirement was a “condition[] subsequent and

not [a] condition[] precedent” to citizenship, L – M –, 4 I. & N.

Dec. at 618 (emphasis added), and that “a distinction should be

made between the computation of the time within which a right may

begin and the computation of the time within which a right shall

end,” 

     There is a good reason here for drawing such a

distinction:    one    who    is     divested   of    citizenship   loses   the

privilege, but one who does not meet the qualifications for

acquiring citizenship derivatively merely has to apply on his own

behalf.17


       To the extent the majority suggests we must defer to the
      17

BIA’s interpretation of the statute at issue in L – M –, see Maj.
Op. at 10 n.2, it is incorrect. As explained, L– M – dealt with
a different statute in a different context. Further, to the
extent L – M – could be read to bear on the question before us,
the BIA has clearly changed its view since 1952. See Matter of
Baires-Larios, 24 I. & N. Dec. 467, 468 (B.I.A. 2008) (“We agree
with the respondent that she has met the requirements of section
321(a) of the Act if she came into her father’s legal custody
prior to reaching her 18th birthday . . . .”); 8 Gordon, Mailman,
and Yale-Loehr, supra, § 98.03(3)(e) (“The administrative view is

                                      - 19 -
       The   majority’s        remaining    arguments     in    favor     of   its

interpretation         merit    little     discussion.         Because    we   are

interpreting a statute, this case does not involve the “legal

fiction” that “a day is indivisible,” Maj. Op. at 11, except to the

extent that this “fiction” reflects our ordinary understanding of

when a person is “over” or “under” a certain age.                   And we must

presume, unless it has given us reason to think otherwise, that

Congress intends the ordinary meaning of words when it uses those

words in statutes.         See, e.g., Mitsui & Co. v. Am. Exp. Lines,

Inc., 

, 814 (2d Cir. 1981).               Because it was also the

rule at common law that the law will not recognize fractions of a

day, see, e.g., Parker v. State, 

, 1021-22 (Md. Ct.

Spec. App. 1984), we must also presume that Congress legislated

“against     [the]     background   of     [that]    common-law   principle[],”

Samantar v. Yousuf, 

, 2289 n.13 (2010) (internal

quotation marks and alteration omitted). Nothing in the derivative

citizenship statute rebuts these presumptions.

       Finally, even if § 1432(a) contained an ambiguity — which it

does   not   —   the    majority    ignores    the    principle    of    statutory



that in computing the child’s age for derivative citizenship
purposes under the applicable statute, the designated age of
maturity will be attained at 12:01 A.M. on the applicable
anniversary day of the child’s birth.” (citing INS
Interpretations 320.2)). In any event, the Chevron deference
question is, for me, ultimately not relevant because the language
of § 1432(a) is sufficiently clear that Congress can be
considered to have “directly spoken to the precise question at
issue,” Chevron U.S.A., Inc. v. Natural Res. Defense Council,
Inc., 

, 842 (1984); see also 

, 181 — the “precise question” being what age a person must be
to acquire citizenship derivatively.

                                     - 20 -
construction that “an ambiguous statute must be construed to avoid

absurd results.”   Rotimi v. Holder, 

, 142 (2d Cir.

2009) (per curiam) (quoting Troll Co. v. Uneeda Doll Co., 

, 160 (2d Cir. 2007)) (internal quotation marks omitted).     The

majority’s reading of the text is not only implausible in and of

itself but also leads to absurdity — for it would be clearly

unreasonable to require courts to ascertain the precise minute and

hour of relevant events when applying statutes that include age

distinctions:

     If we were to hold that a juvenile becomes an adult at
     the precise hour of his or her birth . . . not only would
     it be necessary for the state to prove the precise hour,
     minute, and second of the alleged offense, but the state
     would also have to prove the precise hour, minute, and
     second of the individual’s birth. In addition, courts
     would be required to deal with other peripheral issues,
     such as different time zones across the United States, or
     even across the world, and the inconsistent use of
     daylight-savings time. While . . . these issues are not
     completely impossible to remedy, they seem unreasonable
     or absurd when compared to the practical and commonly
     practiced solution of treating a person as a year older
     at 12:01 a.m. local time on their birthday.

. Yet again, if the statute here truly

were susceptible to multiple meanings, as the majority thinks, the

decision which to apply is perfectly clear.

                               ***

     Our power to grant citizenship is limited; it is “a specific

function to be performed in strict compliance with the terms of an

authorizing statute which says that ‘a person may be naturalized in

the manner and under the conditions prescribed in this subchapter

[including former § 1432(a)], and not otherwise.”   

(alterations omitted) (quoting 8 U.S.C. § 1421(d)). We

                              - 21 -
may not circumvent this principle, as the majority does, by

implausibly   construing   those   clear   and   unambiguous   statutory

requirements.   I respectfully dissent.




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