Monssef Cheneau v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONSSEF CHENEAU, No. 15-70636

Petitioner,

Agency No.

v. A077-279-939

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 6, 2020

Portland, Oregon

Filed August 19, 2020

Before: Mark J. Bennett and Eric D. Miller, Circuit Judges,

and Benita Y. Pearson, * District Judge.

Per Curiam Opinion;

Concurrence by Judge Bennett

*

The Honorable Benita Y. Pearson, United States District Judge for

the Northern District of Ohio, sitting by designation.

2 CHENEAU V. BARR

SUMMARY **

Immigration

Denying in part and granting in part Monssef Cheneau’s

petition for review of a decision of the Board of Immigration

Appeals, and remanding, the panel concluded that Cheneau

was not a derivative citizen of the United States, and that his

burglary conviction, under California Penal Code § 459, was

not a crime-of-violence aggravated felony that rendered him

removable.

As an initial matter, the panel considered which version

of the derivative citizenship statute applied: former 8 U.S.C.

§ 1432(a), which was in effect until February 27, 2001, or

the current statute at 8 U.S.C. § 1431(a). Observing that

§ 1432(a) governed if Cheneau became a citizen before

February 27, 2001, the panel concluded that § 1432(a) did

not apply because it was not in effect at the time of a critical

event giving rise to Cheneau’s eligibility.

Under § 1432(a)(5), a child can obtain derivative

citizenship in two ways: first, if at the time his parent is

naturalized, he “is residing in the United States pursuant to a

lawful admission for permanent residence,” or second, if

after his parent is naturalized and while under eighteen, he

“begins to reside permanently in the United States.”

Cheneau did not obtain lawful permanent resident status

until August 2003, at age eighteen, about four years after his

mother was naturalized and when § 1432(a) was no longer

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

CHENEAU V. BARR 3

in effect. Thus, the panel concluded that the first provision

of § 1432(a)(5) did not apply. Considering the second

provision of § 1432(a)(5), the panel rejected as foreclosed by

Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008),

Cheneau’s argument that he began to “reside permanently in

the United States” in January 2000, when he applied for

adjustment of status to lawful permanent resident. The panel

explained that under Romero-Ruiz “lawful admission for

permanent residence” is required by both provisions of

clause (5). Thus, because the critical event of Cheneau

obtaining lawful permanent resident status happened in

2003, more than two years after § 1432(a) was repealed, the

panel concluded that § 1432(a) was not applicable, and that

§ 1431(a) applied.

Under § 1431(a), a child born outside of the United

States automatically becomes a citizen of the United States

when all of the following conditions have been fulfilled: (1)

At least one parent of the child is a citizen of the United

States, whether by birth or naturalization; (2) The child is

under the age of eighteen years; and (3) The child is residing

in the United States in the legal and physical custody of the

citizen parent pursuant to a lawful admission for permanent

residence. Observing that Cheneau conceded that he never

resided in the United States pursuant to a lawful admission

for permanent residence while he was under the age of

eighteen, the panel concluded that he did not become a

citizen of the United States pursuant to § 1431(a), and that

he was therefore subject to removal proceedings.

The panel agreed with the government that the Supreme

Court’s intervening decision in Sessions v. Dimaya, 138 S.

Ct. 1204 (2018), negated the aggravated felony crime of

violence ground for Cheneau’s removal based on his § 459

burglary conviction. The panel observed that Cheneau’s

4 CHENEAU V. BARR

conviction for receipt of stolen property, under California

Penal Code § 496(a), appeared to be a categorical aggravated

felony under United States v. Flores, 901 F.3d 1150 (9th Cir.

2018), but noted that the Board did not determine this

question and that the government sought a remand on this

issue. Accordingly, the panel remanded for the Board to

consider whether any of Cheneau’s criminal convictions

rendered him removable.

Concurring, Judge Bennett, joined by Judge Miller and

District Judge Pearson, agreed that Romero-Ruiz foreclosed

Cheneau’s derivative citizenship claim, but wrote separately

because he believes that Romero-Ruiz was phrased too

broadly and established a rule that, although understandable

in the circumstances presented in that case, leads to an

incorrect result when applied in this case.

COUNSEL

Kari E. Hong (argued), Boston College Law School,

Newton, Massachusetts, for Petitioner.

Craig A. Newell, Jr. (argued), Trial Attorney; Emily Anne

Radford, Assistant Director; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

CHENEAU V. BARR 5

OPINION

PER CURIAM:

Monssef Cheneau petitions for review of the Board of

Immigration Appeals’ (“BIA”) determinations that he does

not qualify for derivative citizenship and that his burglary

conviction renders him removable. We conclude that

Cheneau is not a derivative citizen of the United States. The

Immigration Judge (“IJ”) and the BIA found that Cheneau

was removable because his California burglary conviction

was a crime-of-violence aggravated felony. While this

appeal was pending, the Supreme Court held that the “crime

of violence” statute, as incorporated into the Immigration

and Nationality Act’s (“INA”) definition of aggravated

felony, is unconstitutionally vague. See Sessions v. Dimaya,

138 S. Ct. 1204, 1223 (2018). Therefore, Cheneau’s

burglary conviction can no longer support removal as a

crime-of-violence aggravated felony. We remand to the BIA

to determine whether Cheneau is removable on another

ground, including based on his California conviction for

receipt of stolen property.

I.

Cheneau was born in December 1984 and is a native of

Morocco and a citizen of France. His parents divorced in

1990, and his mother obtained full custody of him. When

Cheneau was thirteen, he lawfully entered the United States

on a non-immigrant student visa. In July 1999, Cheneau’s

mother was naturalized as a United States citizen.

In January 2000, when Cheneau was fifteen, his mother

filed an I-130 Petition for Alien Relative on his behalf, and

Cheneau simultaneously applied for adjustment to lawful

permanent resident status based on his mother’s pending

6 CHENEAU V. BARR

petition. The Immigration and Naturalization Service

(“INS”) scheduled Cheneau for an adjustment of status

interview but mistakenly mailed the notice of the interview

to Cheneau’s old address. Cheneau and his mother never

received the notice. As a result, Cheneau failed to appear for

the interview, and the INS denied his application for

adjustment of status because he did not appear.

In January 2003, Cheneau’s mother filed a pro se motion

to reopen, writing: “We never received a notice for his

interview. We moved from the previous address . . . . We

sent our notice for address change[] and we sent a lot of

inquiry forms for this file. Unfortunately we never received

an answer. We just [found] out about the problem.” The

INS granted the request for reopening and adjusted

Cheneau’s status to lawful permanent resident in August

2003, when Cheneau was eighteen.

In 2006, Cheneau was convicted of three offenses:

(i) burglary in violation of California Penal Code § 459,

(ii) receipt of stolen property in violation of California Penal

Code § 496(a), and (iii) unlawful taking of a vehicle under

California Vehicle Code § 10851(a). Cheneau was again

convicted of burglary in August 2009. Following his

convictions, the Department of Homeland Security initiated

removal proceedings against Cheneau, alleging that he was

subject to removal on the grounds that he had been convicted

of aggravated felonies and crimes involving moral turpitude.

See 8 U.S.C. § 1227(a)(2)(A).

Before the IJ, Cheneau argued that his removal

proceedings should be terminated because he was a citizen

of the United States, having derived citizenship from his

mother’s naturalization. The IJ rejected Cheneau’s

derivative citizenship claim on the basis that “he did not

attain lawful permanent residence in this country prior to the

CHENEAU V. BARR 7

age of 18.” The IJ also determined that two of Cheneau’s

convictions were for deportable aggravated felonies:

burglary, a crime of violence, and receipt of stolen property,

a theft offense. See 8 U.S.C. § 1101(a)(43)(F), (G). The IJ

expressly made “no findings” as to whether Cheneau had

been convicted of a crime involving moral turpitude.

The BIA affirmed. The BIA first held that under former

8 U.S.C. § 1432(a) (1994), Cheneau had not derived

citizenship from his mother’s naturalization because he did

not become a lawful permanent resident before turning

eighteen. Further, the BIA affirmed the IJ’s determination

that Cheneau was removable on the ground that his burglary

conviction qualified as a crime-of-violence aggravated

felony under 8 U.S.C. § 1101(a)(43)(F). The BIA did not

address the IJ’s other finding regarding Cheneau’s

conviction for receipt of stolen property. Cheneau petitioned

our court for review. We granted the government’s

unopposed motion to remand, so that the BIA could “further

address” whether Cheneau’s burglary conviction was a

crime of violence and determine the “applicable statutory

provision” for Cheneau’s claim of derivative citizenship.

On remand, the BIA again determined that Cheneau’s

burglary conviction was a crime of violence, finding that the

Supreme Court’s decision in Descamps v. United States,

570 U.S. 254 (2013), did not change the analysis. The BIA

also determined that the applicable derivative citizenship

statutory provision was 8 U.S.C. § 1431(a) and not former

8 U.S.C. § 1432(a) 1—which it had applied the first time.

The BIA then concluded that Cheneau was not a derivative

1

Former 8 U.S.C. § 1432(a) was repealed in 2000. We use

“8 U.S.C. § 1432(a)” or “§ 1432(a)” to refer to this former version.

8 CHENEAU V. BARR

citizen under § 1431(a) and was therefore subject to

removal.

II.

We have jurisdiction to determine Cheneau’s claim that

he is a derivative citizen of the United States and therefore

not subject to removal. Minasyan v. Gonzales, 401 F.3d

1069, 1074 (9th Cir. 2005) (citing 8 U.S.C.

§ 1252(b)(5)(A)). We review the legal questions de novo

and “are not required to give Chevron deference to the

agency’s interpretation of the citizenship laws.” 2 Id.

The INA confers automatic “derivative citizenship on

the children of a naturalized citizen, provided certain

statutorily prescribed conditions are met.” Id. at 1075.

Cheneau claims that he derived citizenship from his

mother’s naturalization. This claim is foreclosed by our

decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th

Cir. 2008).

We must first decide which version of the statute

governs. The applicable version is the one that was “in effect

at [the] time the critical events giving rise to eligibility

occurred.” Minasyan, 401 F.3d at 1075. Former § 1432(a)

was in effect until February 27, 2001, when § 1431(a) took

effect. See Hughes v. Ashcroft, 255 F.3d 752, 758–59 (9th

Cir. 2001). Simplified, § 1432(a) governs if Cheneau

became a citizen before February 27, 2001. If Cheneau did

2

We note that there is a circuit split over whether Chevron deference

is appropriate. The Second Circuit, for example, applied Chevron when

reviewing the BIA’s interpretation of § 1432(a), but concluded the BIA’s

interpretation was unreasonable. Nwozuzu v. Holder, 726 F.3d 323, 326–

27, 333 (2d Cir. 2013).

CHENEAU V. BARR 9

not become a citizen before that date, then the successor (and

current) statute, § 1431(a), controls.

Cheneau urges the application of 8 U.S.C. § 1432(a),

which provided in relevant part:

(a) 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:

...

(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 . . . , or

thereafter begins to reside

permanently in the United States

while under the age of eighteen years.

We conclude that § 1432(a) does not apply because it

was not in effect at the time of a critical event giving rise to

eligibility. Under clause (5), a child can obtain derivative

citizenship in two ways: first, if at the time his parent is

naturalized, he “is residing in the United States pursuant to a

lawful admission for permanent residence,” or second, if

after his parent is naturalized and while under eighteen, he

“begins to reside permanently in the United States.” Id.

Cheneau did not obtain lawful permanent resident status 3

3

We use interchangeably the terms “lawful admission for

permanent residence” and obtaining status as a “lawful permanent

resident.”

10 CHENEAU V. BARR

until August 2003, at age eighteen, about four years after his

mother was naturalized and when § 1432(a) was no longer

in effect. Thus, the first provision of § 1432(a)(5) does not

help Cheneau.

Cheneau does not dispute this but argues instead that he

became a derivative citizen under the second provision of

§ 1432(a)(5). Cheneau contends that even though he did not

obtain lawful permanent resident status before his mother

was naturalized, he nonetheless began to “reside

permanently in the United States” after she was naturalized,

and “while [he was] under the age of eighteen.” According

to Cheneau, he began to “reside permanently in the United

States” in January 2000, when he applied for adjustment of

status to lawful permanent resident. Under Cheneau’s

interpretation of the second provision, the critical event

occurred before § 1432(a) was repealed. In support,

Cheneau relies on the Second Circuit’s decision in Nwozuzu

v. Holder, 726 F.3d 323 (2d Cir. 2013), which held:

“‘[B]egins to reside permanently’ does not require ‘lawful

permanent resident’ status. It does require, however, ‘some

objective official manifestation of the child’s permanent

residence.’” Id. at 333 (alterations in original) (citation

omitted). In Cheneau’s view, his application for adjustment

to lawful permanent resident status when he was fifteen—in

combination with his actual residence in the United States—

is sufficient as an “objective official manifestation of [his]

permanent residence.” Id. Cheneau thus contends the

undisputed facts demonstrate that he became a citizen when

§ 1432(a) was still in effect.

CHENEAU V. BARR 11

We are foreclosed from following Nwozuzu. 4 In

Romero-Ruiz, we considered a petitioner’s derivative

citizenship claim under § 1432(a)(5). 538 F.3d at 1062.

Like Cheneau, Romero-Ruiz argued that although he had not

been lawfully admitted for permanent residence at the time

of his mother’s naturalization, he qualified for derivative

citizenship under the second provision’s “begins to reside

permanently” requirement. Id. We rejected Romero-Ruiz’s

argument, concluding: “A plain reading of the statute

evidences the requirement that the child be residing pursuant

to lawful admission either at the time of the parent’s

naturalization or at some subsequent time while under the

age of 18. The phrase ‘or thereafter begins to reside

permanently’ alters only the timing of the residence

requirement, not the requirement of legal residence.” Id.

We are bound by Romero-Ruiz, under which “lawful

admission for permanent residence” is required by both

provisions of clause (5). See Miller v. Gammie, 335 F.3d

889, 899 (9th Cir. 2003) (en banc) (instructing that absent

superseding Supreme Court authority, “a three-judge panel

may not overrule a prior decision of the court”); Tippett v.

Coleman (In re Tippett), 542 F.3d 684, 691 (9th Cir. 2008)

(“[W]here a panel confronts an issue germane to the eventual

resolution of the case, . . . that ruling becomes the law of the

circuit, regardless of whether doing so is necessary in some

strict logical sense.” (citation omitted)).

We acknowledge that certain language in Romero-Ruiz

can be read as indicating that the second provision requires

“some lawful status” but not necessarily lawful permanent

4

Indeed, the Second Circuit expressly disagreed with our court

when it held that the second provision does not require “lawful admission

for permanent residence.” Nwozuzu, 726 F.3d at 328 n.5.

12 CHENEAU V. BARR

resident status. But we think this view requires a strained

reading of Romero-Ruiz, especially considering the first

sentence of the opinion: “This petition for review presents

the question of whether an immigrant who did not have

lawful permanent resident status at the time of his mother’s

naturalization is eligible for derivative citizenship. We

conclude that he is not, and deny the petition.” 538 F.3d

at 1060; see also id. at 1062. In addition, Romero-Ruiz’s

surplusage analysis makes sense only if “reside

permanently” requires lawful permanent resident status: “To

interpret the second clause as conferring derivative

citizenship on children who otherwise meet the requirements

as long as they are permanently living in the United States

would render the first clause—requiring legal permanent

residence—superfluous.” Id. The Second, Fifth, and

Eleventh Circuits have all read Romero-Ruiz like we do here,

as requiring “lawful admission for permanent residence”

under both provisions. See Nwozuzu, 726 F.3d at 328 n.5;

Gonzalez v. Holder, 771 F.3d 238, 240–41 (5th Cir. 2014);

United States v. Forey-Quintero, 626 F.3d 1323, 1326–27

(11th Cir. 2010) (agreeing with Romero-Ruiz’s holding).

We are, of course, not bound by other circuits’ views of our

opinions. But the fact that three of them read Romero-Ruiz

as we do indicates that our reading is correct.

Under Romero-Ruiz, the critical event of Cheneau

obtaining lawful permanent resident status happened in

2003, more than two years after § 1432(a) was repealed, and

that section is therefore not applicable.

We apply instead 8 U.S.C. § 1431(a), which states:

A child born outside of the United States

automatically becomes a citizen of the United

States when all of the following conditions

have been fulfilled:

CHENEAU V. BARR 13

(1) At least one parent of the child is a citizen

of the United States, whether by birth or

naturalization.

(2) The child is under the age of eighteen

years.

(3) The child is residing in the United States

in the legal and physical custody of the

citizen parent pursuant to a lawful

admission for permanent residence.

Cheneau concedes that he never resided in the United States

pursuant to a lawful admission for permanent residence

while he was under the age of eighteen. Therefore, Cheneau

did not become a citizen of the United States pursuant to

§ 1431(a).

III.

As Cheneau is not a citizen of the United States, he is

subject to removal proceedings. The BIA found that

Cheneau was removable because his burglary conviction

was a crime-of-violence aggravated felony. The government

concedes on appeal that the Supreme Court’s intervening

decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018),

“negates this ground for Cheneau’s removal.” We agree.

Although Cheneau’s conviction for receipt of stolen

property appears to be a categorical aggravated felony under

United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), the

BIA did not determine this question and the government

seeks a remand on this issue. We accordingly remand to the

BIA to consider whether any of Cheneau’s criminal

convictions render him removable.

14 CHENEAU V. BARR

Petition DENIED in part and GRANTED in part;

REMANDED.

The parties are to bear their own costs.

BENNETT, Circuit Judge, with whom Judge Miller and

Judge Pearson join, concurring:

Our decision in Romero-Ruiz v. Mukasey, 538 F.3d 1057

(9th Cir. 2008), forecloses Cheneau’s derivative citizenship

claim, so I concur in our per curiam opinion. I write

separately because I believe that Romero-Ruiz was phrased

too broadly and established a rule that, although

understandable in the circumstances presented in that case,

leads to an incorrect result when applied here. 1

Cheneau’s derivative citizenship claim turns on the

interpretation of a now-repealed section of the Immigration

Nationality Act (“INA”)—8 U.S.C. § 1432(a) (1994). 2

Though § 1432(a) was repealed effective February 2001, it

would nonetheless be applicable to Cheneau’s derivative

citizenship claim if it were “in effect at [the] time the critical

events giving rise to eligibility occurred.” Minasyan v.

Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). In my view,

§ 1432(a) applies here, and Cheneau became a United States

1

Romero-Ruiz had no lawful status in the United States, so the court

in that case had no occasion to consider a situation like Cheneau’s. Had

Cheneau’s situation been before the panel in Romero-Ruiz, the holding

might have been different.

2

For ease of reference, all citations to “8 U.S.C. § 1432(a)” or

“§ 1432(a)” refer to this former section.

CHENEAU V. BARR 15

citizen in January 2000 when he applied for adjustment to

lawful permanent resident status.

Clause (5) of § 1432(a) sets forth certain conditions for

children, born outside of the United States of alien parents,

to derive citizenship through the naturalization of a parent

with legal custody:

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 [provision one]. . . or thereafter

begins to reside permanently in the United

States while under the age of eighteen years

[provision two].

8 U.S.C. § 1432(a)(5) (emphasis added). The word “or”

indicates that children have two different pathways to

derivative citizenship: (1) by residing in the United States

pursuant to a “lawful admission for permanent residence”

when their parent was naturalized, or (2) by beginning to

“reside permanently” in the United States while under age

eighteen and after their parent’s naturalization.

Cheneau has been residing in the United States since he

lawfully entered at age thirteen. When he was fourteen,

Cheneau’s mother, who had full legal custody of him,

became a naturalized citizen. When he was fifteen, Cheneau

applied for adjustment of status to lawful permanent

resident. But due to a mistake by the Immigration and

Naturalization Service (“INS”), Cheneau did not obtain

lawful permanent resident status until more than three years

later—after he had turned eighteen.

Cheneau does not qualify for derivative citizenship

under the first provision of clause (5): he was not lawfully

16 CHENEAU V. BARR

admitted for permanent residence at the time of his mother’s

naturalization. Cheneau contends that he is a derivative

citizen under the second provision because he began to

“reside permanently” in the United States after his mother’s

naturalization and before he turned eighteen. Cheneau

acknowledges that he did not obtain lawful permanent

resident status until after he turned eighteen, but argues that

the second provision’s “begins to reside permanently” does

not require lawful admission for permanent residence. 3

Rather, it requires only actual residence and an “objective

intent” to reside permanently—which he satisfied in January

2000, at age fifteen, when he applied for adjustment to

lawful permanent resident status while residing in the United

States. 4 As the opinion states, this argument is foreclosed by

Romero-Ruiz.

A circuit split exists on the interpretation of the second

provision’s “or thereafter begins to reside permanently in the

United States.” 8 U.S.C. § 1432(a)(5). Our court interprets

“reside permanently” as identical in meaning to the first

provision’s “residing . . . pursuant to a lawful admission for

permanent residence.” In Romero-Ruiz, we held that “[a]

plain reading of the statute evidences the requirement that

the child be residing pursuant to lawful admission either at

the time of the parent’s naturalization or at some subsequent

time while under the age of 18.” 538 F.3d at 1062. We

explained that the “phrase ‘or thereafter begins to reside

3

Like the government and Cheneau, I use interchangeably the terms

“lawful admission for permanent residence” and obtaining status as a

“lawful permanent resident.”

4

Cheneau’s interpretation would require applying § 1432(a),

because the “critical event” would be his application for adjustment of

status rather than the actual adjustment of his status to lawful permanent

resident.

CHENEAU V. BARR 17

permanently’ alters only the timing of the residence

requirement, not the requirement of legal residence.” Id.

Romero-Ruiz thus adopted the “shorthand interpretation” of

clause (5)—the view that “reside permanently” is a

shorthand reference to “resid[e] . . . pursuant to a lawful

admission for permanent residence.” The Eleventh Circuit

agreed with Romero-Ruiz’s interpretation in United States v.

Forey-Quintero, 626 F.3d 1323, 1324 (11th Cir. 2010),

holding that “the phrase ‘begins to reside permanently in the

United States while under the age of eighteen years’

contained in 8 U.S.C. § 1432(a)(5) requires the status of a

lawful permanent resident.”

The Second Circuit reached the opposite conclusion:

“‘[B]egins to reside permanently’ does not require ‘lawful

permanent resident’ status.” Nwozuzu v. Holder, 726 F.3d

323, 333 (2d Cir. 2013) (alterations in original). Instead,

“begins to reside permanently” requires “some objective

official manifestation of the child’s permanent residence.”

Id. (citation omitted). In the Second Circuit, an “application

of adjustment to lawful permanent resident status . . . is an

objective and official manifestation of [a petitioner’s] intent

to reside permanently in the United States.” 5 Id. at 334.

In my view, we are on the wrong side of the circuit split.

Normal rules of statutory construction counsel that different

terms in the same section mean different things. Both the

statutory text and history of amendments to the statute show

that “residing in the United States pursuant to a lawful

5

The court also explained that the petitioner’s “particular family

circumstances, including the presence and naturalization of [his] parents

and the eventual naturalization of all of his siblings, although not

sufficient on its own to establish an objective manifestation of permanent

residency, further bolster our conclusion.” Nwozuzu, 726 F.3d at 334.

18 CHENEAU V. BARR

admission for permanent residence” and “begins to reside

permanently in the United States” do mean different things,

and were so intended by Congress.

I. The Text

Clause (5)’s two provisions use different language, and

the “usual rule [is] that ‘when the legislature uses certain

language in one part of the statute and different language in

another, the court assumes different meanings were

intended.’” Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9

(2004) (citation omitted). This rule is especially applicable

where, as here, the same Congress chose to use different

language in the same section of the same statute. See

Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067,

2071–72 (2018) (“We usually ‘presume differences in

language . . . convey differences in meaning.’ And that

presumption must bear particular strength when the same

Congress passed both statutes to handle much the same

task.” (citation omitted)); Lopez v. Sessions, 901 F.3d 1071,

1077–78 (9th Cir. 2018). But even beyond application of the

rule, an examination of the statutory text reveals material

distinctions between the differently worded phrases.

In the first provision, “lawful admission for permanent

residence” is a “term of art.” Gooch v. Clark, 433 F.2d 74,

78 (9th Cir. 1970). The INA defines “lawfully admitted for

permanent residence” as “the status of having been lawfully

accorded the privilege of residing permanently in the United

States as an immigrant in accordance with the immigration

laws, such status not having changed.” 8 U.S.C.

§ 1101(a)(20) (emphasis added). The term of art “refers not

to the actuality of one’s residence but to one’s status under

the immigration laws,” as an individual with the privilege of

residing permanently in the United States need not exercise

that privilege at all times. Gooch, 433 F.2d at 79 (emphasis

CHENEAU V. BARR 19

added). The INA’s definition of “lawfully admitted for

permanent residence” includes as a component part the

words “residing permanently”—which is, of course, a

variant of the second provision’s “reside permanently.” See

Thomas v. Lynch, 828 F.3d 11, 15 (1st Cir. 2016).

The INA does not define “reside permanently,” but it

separately defines “residence” and “permanent.” The word

“residence” means “the place of general abode; the place of

general abode of a person means his principal, actual

dwelling place in fact, without regard to intent.” 8 U.S.C.

§ 1101(a)(33) (emphasis added). Unlike the term in the first

provision, “residence” refers to a place and not a status. The

INA defines “permanent” as “a relationship of continuing or

lasting nature, as distinguished from temporary . . . .” Id.

§ 1101(a)(31). But, the INA explains, “a relationship may

be permanent even though it is one that may be dissolved

eventually at the instance either of the United States or of the

individual, in accordance with law.” Id. Using the two

separate definitions as reference, a reasonable definition for

“reside permanently” is “to have as a principal, actual

dwelling place for a continuing or lasting period.” Thomas,

828 F.3d at 15.

The two provisions require different things for derivative

citizenship. The first provision imposes a status requirement

of “lawful admission for permanent residence.” See

8 U.S.C. § 1432(a)(5). The first provision also imposes an

actual residence requirement: the child must be “residing in

the United States” at the time of the parent’s naturalization.

Id. By contrast, the second provision simply says “thereafter

begins to reside permanently in the United States” and has

no status requirement. Id. The second provision includes a

requirement of actual residence that is permanent, as well as

the temporal requirement that the permanent residence

20 CHENEAU V. BARR

began after the parent’s naturalization and while the

petitioner was under age eighteen.

On the face of the statute, only the first provision of

clause (5) contains a status requirement. Romero-Ruiz,

however, imposes the first provision’s status requirement

onto the second provision. The distinction between status

and actual residence is significant. An individual can be

“lawfully admitted for permanent residence” without

actually residing in the United States. Gooch, 433 F.2d at 76

(holding that “green card commuters” can be lawfully

admitted for permanent residence despite physically residing

in Canada or Mexico and crossing the border to work). The

converse is also true: an individual can lawfully and

permanently reside in the United States without having the

status of “lawful permanent resident.” See Nwozuzu, 726

F.3d at 333 (“[T]here are a number of groups that are

permitted to stay in this country permanently without being

lawful permanent residents . . . .”); Elkins v. Moreno,

435 U.S. 647, 666 (1978).

If Romero-Ruiz is correct that “lawful admission for

permanent residence” and “reside permanently” have

identical meanings, then there would be no need for two

provisions and the second provision would be surplusage.

See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a

cardinal principle of statutory construction that a statute

ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.” (internal citations and quotation

marks omitted)). Romero-Ruiz states that “[t]he phrase ‘or

thereafter begins to reside permanently’ alters only the

timing of the residence requirement . . . .” 538 F.3d at 1062.

In other words, the first provision grants the child derivative

citizenship if he was a lawful permanent resident at the time

CHENEAU V. BARR 21

his parent naturalized, while the second provision grants the

child derivative citizenship if he becomes a lawful

permanent resident after his parent’s naturalization. If that

were the case, it is difficult to imagine why Congress would

write two provisions that use different words but mean the

same thing, when it could have written one provision along

the lines of “pursuant to a lawful admission for permanent

residence at the time of naturalization or thereafter.” 6

Romero-Ruiz relies on a different surplusage argument,

explaining that “[t]o interpret the second [provision] as

conferring derivative citizenship on children who otherwise

meet the requirements as long as they are permanently living

in the United States would render the first [provision]—

requiring legal permanent residence—superfluous.”

538 F.3d at 1062. The government advances a similar

argument that if the second provision requires a “lesser form

of residence” and provides an easier pathway to derivative

citizenship, then there would be no need for the first

provision. In my view, Romero-Ruiz and the government

incorrectly read the second provision. The first provision

provides a pathway for children who had already obtained

lawful permanent resident status and who were actually

residing in the United States—this combination being the

“greater” form of residency—to get the benefit of automatic

citizenship as soon as their parent is naturalized. The second

provision provides a pathway for children without lawful

permanent resident status, and who therefore have to

“begin[] to reside permanently in the United States” after

their parent’s naturalization. See Thomas, 828 F.3d at 17

6

This is precisely the language that Congress used in former 8

U.S.C. § 1431(a)(2) (1994) (amended 2000). This adjacent section was

effective at the same time that § 1432(a) was. See Minasyan, 401 F.3d

at 1076 n.11.

22 CHENEAU V. BARR

(noting that the word “begins” requires that the child

“experienced any relevant change in status or took any

relevant action” after his parent’s naturalization). 7 The

second provision, even without a status requirement, does

not necessarily swallow the first. The first provision’s actual

residence requirement is merely “residing” in the United

States at the time of the naturalization. 8 U.S.C.

§ 1432(a)(5) (1994). The second provision imposes the

additional requirements that the actual residence be

permanent, and that the permanent residence began after the

parent’s naturalization.

Other sections of the INA also recognize a distinction

between the two terms, including former 8 U.S.C.

§ 1431(a)(2) (1994), which addressed derivative citizenship

for children born outside the United States of one citizen

parent and one alien parent. That adjacent section provides

that such children may derive citizenship from the alien

parent’s naturalization if they were “residing in the United

States pursuant to a lawful admission for permanent

residence at the time of naturalization or thereafter and

begin[] to reside permanently in the United States while

under the age of eighteen years.” 8 Id. (emphases added).

7

In Thomas, the First Circuit found support for both Cheneau’s and

the government’s reading of § 1432(a)(5). 828 F.3d at 15–17. The court

chose not to decide the question, as it found the Petitioner lost under

either reading. Id. at 17.

8

Other examples abound. See, e.g., 8 U.S.C. § 1433(a)(5)(A)

(1994) (“[T]he child is residing permanently in the United States with

the citizen parent, pursuant to a lawful admission for permanent

residence.” (emphasis added)); id. § 1438(b)(2) (“No person shall be

naturalized . . . unless he has been lawfully admitted to the United States

for permanent residence and intends to reside permanently in the United

States.” (emphasis added)).

CHENEAU V. BARR 23

Importantly, former § 1431(a)(2) uses “and” to link the

terms—in contrast to “or” in § 1432(a)—illustrating two

points. First, the adjacent section’s usage of the conjunctive

“and” all but guarantees that Congress did not intend “reside

permanently” to be shorthand for “resid[e] . . . pursuant to a

lawful admission for permanent residence.” Second, that

Congress chose to use the disjunctive “or” in § 1432(a)

supports that the statute provides two different pathways to

derivative citizenship. 9

9

I address briefly Thomas’s discussion of the additional arguments

in support of the government’s reading. 828 F.3d at 16. First, the First

Circuit pointed out that if “reside permanently” is broader than “lawfully

admitted for permanent residence,” then “the requirements for becoming

a citizen at the time of the relevant naturalization would be stricter than

the requirements for becoming a citizen after that naturalization.” Id. I

do not find this view to be compelling. When evaluating whether a

requirement is easier or harder to satisfy, I think we should view it from

the perspective of the applicant rather than the timing. Under Cheneau’s

interpretation, children who had already obtained “lawful admission for

permanent residence” get the benefit of automatic citizenship as soon as

their parent becomes naturalized. Children without legal permanent

resident status must “begin” to reside permanently in the United States—

such as by experiencing a change in status or taking a “relevant action”—

after their parent’s naturalization. Id. at 17. Second, Thomas points out

that under an adjacent section of the INA, “aliens born abroad to one

alien parent and one citizen parent could not acquire derivative

citizenship without obtaining a lawful admission for permanent

residence.” Id. at 16. It would be an oddity, according to the court, for

Congress to require that children born of one citizen parent acquire

lawful permanent resident status for derivative citizenship, but not

require the same thing of children born of two alien parents. Id. I am

sympathetic to the view that this result seems odd, but note that this is

the same adjacent section, former 8 U.S.C. § 1431(a)(2), discussed

above. The adjacent section clearly requires that the child be “residing

in the United States pursuant to a lawful admission for permanent

residence at the time of naturalization or thereafter and begins to reside

permanently in the United States while under the age of eighteen years.”

24 CHENEAU V. BARR

If Congress intended to limit derivative citizenship to

lawful permanent residents, it could have expressly done so.

It did just that in the current version of the derivative

citizenship statute, which modified § 1432(a)(5) to read:

“The child is residing in the United States in the legal and

physical custody of the citizen parent pursuant to a lawful

admission for permanent residence.” 8 U.S.C. § 1431(a)(3).

The current version deletes “or thereafter begins to reside

permanently”—the second pathway—from § 1432(a)(5),

and makes clear that a child is eligible for derivative

citizenship only if he was lawfully admitted for permanent

residence.

II. The History

The history of amendments to the statutory text, which

Romero-Ruiz does not discuss, also supports interpreting the

two provisions differently. 10 The term “reside permanently”

has been used in the derivative citizenship statute since 1907,

while the term “lawful admission for permanent residence”

is a term of art first introduced and defined in 1952. See

Citizenship Act of 1907, ch. 2534 § 5, 34 Stat. 1228, 1229

(repealed 1940); Nwozuzu, 726 F.3d at 330–31. In 1940,

Congress enacted a predecessor version of § 1432(a),

providing two different pathways to derivative citizenship

8 U.S.C. § 1431(a)(2) (1994) (emphasis added). I think it even odder

that Congress would write a law requiring both “lawful admission for

permanent residence” and “begins to reside permanently” if those terms

mean the same thing, or if Congress intended those terms to be

interchangeable in one section but carry different meanings in an

adjacent section.

10

The Second Circuit in Nwozuzu conducted an extensive analysis

of the history of the derivative citizenship statute, which I will not repeat

in full. See 726 F.3d at 329–32.

CHENEAU V. BARR 25

for a child who was “residing in the United States at the time

of the naturalization of the parent last naturalized . . . or

thereafter begins to reside permanently in the United States

while under the age of eighteen years.” Nwozuzu, 726 F.3d

at 331 (quoting Nationality Act of 1940, ch. 876 § 314, 54

Stat. 1137, 1145–46 (repealed 1952)). The 1940 version’s

second provision is identical to the second provision of

§ 1432(a)(5), the statute at issue here. The two versions of

the first provision differ in that the 1940 version does not

contain a requirement of “lawful admission for permanent

residence.”

The Immigration and Nationality Act of 1952 (the “Act”

or “1952 Act”) defined “lawfully admitted for permanent

residence” as a new term of art. Nwozuzu, 726 F.3d at 331.

The House Report accompanying the 1952 Act explained

that the term, as defined by the Act, carries “especial

significance because of its application to numerous

provisions of the bill.” H.R. Rep. No. 82–1365 (1952). The

1952 Act also modified the derivative citizenship statute by

adding “pursuant to lawful admission for permanent

residence” for the first time. INA § 321(a)(5), ch. 477, 66

Stat. 163, 245 (1952). Notably, Congress preserved the two

pathways and added the new term of art only to the first. Id.

The second provision was left almost unchanged, with the

only material difference between the 1952 version and the

1940 version being the 1952 version’s age change from

under eighteen to under sixteen. 11 Given that Congress

11

Clause (5) of the 1952 version, which is almost identical to

§ 1432(a)(5), provided: “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 . . . , or thereafter begins to reside

permanently in the United States while under the age of sixteen years.”

INA § 321(a)(5), ch. 477, 66 Stat. 163, 245 (1952).

26 CHENEAU V. BARR

added “lawful admission for permanent residence” for the

first time in 1952, and added it only to the first provision, I

agree with the Second Circuit’s conclusion that Congress did

not intend the phrase “‘reside permanently’—which had

been carried over, unaltered, from previous statutes since

1907—to be shorthand for the new term of art.” Nwozuzu,

726 F.3d at 331. Indeed, I would go further—I think it

almost inconceivable that if Congress intended such a radical

change, it would have done so in such an inscrutable manner.

The government cites a 1950 Senate Report—stating that

“lawful permanent residence has always been a prerequisite

to derivative citizenship”—to rebut the Second Circuit’s

analysis. The government suggests that Nwozuzu ignored

that “lawful admission for permanent residence,” even

though it was first introduced in 1952, has always been a

requirement that was unchanged by the 1952 Act. But the

government quotes the report out of context. The 1950

Senate Report states the following:

Lawful permanent residence has always been

a prerequisite to derivative citizenship. There

must be a bona fide intent to reside

permanently in the United States. Thus, the

child does not derive citizenship if he goes

abroad before the naturalization of his

parents, and intends to abandon and does

abandon his residence in the United States.

However, if there is a fixed intention to

return, it has been held that an absence of as

long as 14 years will not prevent

naturalization shortly after the child’s

departure provided the father’s domicile has

continued.

CHENEAU V. BARR 27

S. Rep. No. 81-1515, at 707 (1950) (emphasis added). The

words “lawful permanent residence” used in the 1950 Senate

Report clearly do not mean the term of art “lawfully admitted

for permanent residence” introduced in the 1952 Act. If

anything, the Senate Report supports Cheneau’s and the

Second Circuit’s view that actual residence in the United

States can qualify a child for derivative citizenship, and

intent is relevant for determining permanent residence.

III. Conclusion

I believe that if Congress intended the two provisions of

§ 1432(a)(5) to mean the same thing, it would have used the

same language or written just one provision. Instead,

Congress chose two different phrases—one that refers to

status while the other refers to actual residence. Those two

terms have been used in other sections of the INA to mean

different things. And the history of the statute further shows

that the two terms have different meanings and serve

different functions. For these reasons, I believe that

Romero-Ruiz was wrongly decided, and that contrary to the

compelled holding in our opinion, Cheneau is a citizen of the

United States and not an alien subject to removal.