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USCIS Brief to Gilberto Edwards (3rd Cir. 11-20-12) citizenship case
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Transcript of USCIS Brief to Gilberto Edwards (3rd Cir. 11-20-12) citizenship case
No. 12-3670 _____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT _____________________________________________________________
Gilberto Ernesto EDWARDS,
Appellee,
v.
Tony BRYSON, District Director, Philadelphia, U.S. Citizenship and Immigration Services, et al,
Appellants.
_____________________________________________________________
ON APPEAL FROM A FINAL ORDER OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________________________________________________
APPELLANTS’ OPENING BRIEF _____________________________________________________________
ZANE DAVID MEMEGER STUART DELERY United States Attorney Principle Deputy Assistant Attorney General VERONICA J. FINKELSTEIN JEFFREY S. ROBINS Assistant U.S. Attorney Assistant Director U.S. Attorney’s Office Office of Immigration Litigation 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Attorneys for Appellants
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TABLE OF CONTENTS STATEMENT OF JURISDICTION .............................................................. 1 STATEMENT OF THE ISSUES ................................................................... 1 STATEMENT OF FACTS ............................................................................. 2 STATEMENT OF THE CASE ...................................................................... 7 RELATED CASES AND PROCEEDINGS .................................................. 8 STANDARD OF REVIEW ............................................................................ 8 SUMMARY OF THE ARGUMENT ............................................................. 9 ARGUMENT ................................................................................................ 10
I. The District Court Erred By Failing To Consider The Government’s Rebuttal Evidence That Edwards Is Not A United States Citizen. ................................................ 10 II. The Government Presented Clear, Unequivocal, And Convincing Evidence That Edwards Is Not A United States Citizen. ............................................................... 14
CONCLUSION ............................................................................................. 18
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TABLE OF AUTHORITIES
Federal Cases Abreu-Mejia v. Att’y Gen. of U.S.,
393 F. App’x 918 (3d Cir. 2010) ............................................................... 12 Biskupski v. Att’y Gen.,
503 F.3d 274 (3d Cir. 2007) ........................................................................ 4 Brissett v. Ashcroft,
363 F.3d 130 (2d Cir. 2004) ...................................................................... 17 Claver v. U.S. Att’y Gen.,
245 F. App’x 904 (11th Cir. 2007) ............................................................ 16 Delmore v. Brownell,
135 F. Supp. 470 (D.N.J. 1955) .................................................... 10, 11, 13 Delmore v. Brownell,
236 F.2d 598 (3d Cir. 1956) ................................................................ 11, 13 Fedorenko v. United States,
449 U.S. 490 (1981) ............................................................................ 12, 15 Forrester v. Att’y Gen. of U.S.,
403 F. App’x 744 (3d Cir. 2010) ............................................................... 16 Hudson United Bank v. LiTenda Mort. Corp.,
142 F.3d 151 (3d Cir. 1998) ...................................................................... 14 INS v. Pangilinan,
486 U.S. 875 (1988) .................................................................................. 12 Lawrence v. City of Philadelphia,
527 F.3d 299 (3d Cir. 2008) .................................................................. 8, 15 Miller v. Albright,
523 U.S. 420 (1998) ............................................................................ 10, 12
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iii
Morgan v. Att’y Gen. of U.S.,
432 F.3d 226 (3d Cir. 2005) ................................................................ 16, 17 Spruill v. Gillis,
372 F.3d 218 (3d Cir. 2004) ...................................................................... 14 United States v. Breyer,
41 F.3d 884 (3d Cir. 1994) ........................................................................ 10 United States v. Edwards,
No. 1:00-cr-1334 (E.D.N.Y.) ...................................................................... 3 United States v. Edwards,
342 F.3d 168 (2d Cir. 2003) ........................................................................ 3 United States v. Wong Kim Ark,
169 U.S. 649 (1898) .................................................................................. 10
Federal Statutes 8 U.S.C. § 1432 ............................................................................................... 4 8 U.S.C. § 1432(a) .......................................................................... 4, 5, 16, 17 8 U.S.C. § 1432(a)(3) ......................................................................... 5, passim 8 U.S.C. § 1452(a) ........................................................................................ 10 8 U.S.C. § 1503 ....................................................................................... 1, 6, 8 8 U.S.C. § 1503(a) ........................................................................................ 10 28 U.S.C. § 1291 ............................................................................................. 1
Child Citizenship Act of 2000
Pub. L. No. 106-395, Stat. 1631 ..................................................................... 4
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Federal Regulations 8 C.F.R. § 103.3(a) ....................................................................................... 10 8 C.F.R. § 341.1 ............................................................................................ 10 8 C.F.R. § 341.6 ............................................................................................ 10
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1
STATEMENT OF JURISDICTION The district court exercised jurisdiction to review Plaintiff/Appellee
Gilberto Ernesto Edwards’ (“Edwards”) amended complaint under 8 U.S.C.
§ 1503. The district court rendered a final decision on July 26, 2012. App.
p. 6. Defendants/Appellants (“the Government”) filed a timely notice of
appeal under Federal Rule of Appellate Procedure 4(a)(1)(B) on September
20, 2012. App. p. 1. This Court has jurisdiction to review the district
court’s final decision under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES 1. Once a putative citizen presents a prima facie claim to United States
citizenship, the burden shifts to the Government to rebut such claim with
clear, unequivocal, and convincing evidence. Here, the district court shifted
the burden to the Government to rebut Edwards’ prima facie claim to
citizenship, but it stopped there. It did not consider Government’s primary
rebuttal evidence. Did the district court err by refusing to consider the
Government’s rebuttal evidence?
2. Edwards claims that he derived United States citizenship through his
mother’s naturalization alone because, at the time his mother naturalized, his
parents were “legally separated.” But when Edwards’ mother naturalized,
she was not “legally separated” from Edwards’ father: her certificate of
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2
naturalization indicates she was married and she did not divorce Edwards’
father until two years later. Did Edwards derive citizenship through his
mother’s naturalization?
STATEMENT OF FACTS
Gilberto Ernesto Edwards, a foreign-born, putative United States
citizen, immigrated to the United States as a teenager. App. p. 39. Edwards
was born in Panama in 1965. Id. At the time of his birth, his parents were
married. Id. In 1977, he immigrated to the United States as a lawful
permanent resident. Id.
On May 5, 1978, Edwards’ mother petitioned the New York Family
Court for financial support from Edwards’ father. App. p. 39-40. The
petition lists different addresses for Edwards’ parents. App. p. 40. The
family court granted the petition and entered a temporary (and later
permanent) order of support, requiring Edwards’ father to provide Edwards’
mother with financial support. Id.
Edwards’ parents then naturalized in the United States. Id. His
mother naturalized in 1982, when Edwards was seventeen. Id. Her
certificate of naturalization notes that, at the time she naturalized, she was
married. App. p. 57. Edwards turned 18 in 1983. App. p. 40. Edwards’
father then naturalized in 1984. App. p. 40. Edwards’ father’s certificate of
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naturalization also notes that, at the time he naturalized, he was married.
App. p. 59. In 1985, the Family Court of New York entered a divorce
decree for Edwards’ parents. App. p. 40, 61-62.
Six years later, Edwards applied for a United States passport. App. p.
40, 64. To support his application, Edwards submitted his birth certificate
and his parents’ naturalization certificates. Id. The Department of State
reviewed and returned these documents, and on December 16, 1991, the
Department of State issued Edwards a United States Passport with an
expiration date of December 15, 2001. App. p. 40, 66.
Edwards was then indicted and convicted of drug trafficking. See
generally United States v. Edwards, No. 1:00-cr-1334 (E.D.N.Y.). On
December 27, 2000, Edwards was indicted for importing cocaine. App. p.
40. Edwards went to trial, and in early 2001, a jury convicted him of
conspiring to import greater than five kilograms of cocaine into the United
States. See United States v. Edwards, 342 F.3d 168, 172 (2d Cir. 2003). He
was sentenced to 235 months imprisonment. Id.
After he was indicted, but before he was convicted, Edwards filed an
N-600 Application for Certificate of Citizenship with the legacy
Immigration and Naturalization Service (“INS”). App. p. 40, 81-83. He
applied for a certificate of citizenship again in 2008. App. p. 41, 85-91. In
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his second application, Edwards noted that he received a passport in “1995
or 1996,” though he did not attach a copy of his passport to his application.
App. p. 87.
United States Citizenship and Immigration Services (“USCIS”) 1
denied both applications. App. p. 41, 93-95. USCIS first determined that,
under 8 U.S.C. § 1432(a) (1990), 2 Edwards did not derive citizenship from
his parents. App. p. 93-95. Section 1432(a) states in relevant part:
(a) A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions . . .
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is under the age of 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 last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or . . . .
1 On March 1, 2003, Congress transferred INS’s relevant functions to USCIS. See Biskupski v. Att’y Gen., 503 F.3d 274, 277 n.5 (3d Cir. 2007). 2 Congress repealed section 1432 by enacting the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631, effective February 27, 2001.
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8 U.S.C. § 1432(a) (1990). USCIS determined that Edwards did not derive
United States citizenship under section 1432(a)(3) because, at the time of his
mother’s naturalization, Edwards’ parents were not “legally separated.”
App. p. 95. Then USCIS determined that Edwards’ passport was not
evidence of citizenship because it was expired. Id. Edwards filed an
administrative appeal. App. p. 41.
The Administrative Appeals Office (“AAO”) affirmed in part and
remanded in part. App. p. 41, 98-101. It affirmed USCIS’s determination
that Edwards did not derive citizenship through his mother’s naturalization.
App. p. 99-100. But it remanded Edwards’ application to USCIS with
instructions to allow the Department of State to review Edwards’ passport
and determine whether to revoke it. App. p. 100-101.
After remand, USCIS again denied Edwards’ applications. App.
p. 41, 103-108. USCIS again explained that Edwards did not derive
citizenship through his mother’s naturalization. App. p. 103-107. Then
USCIS explained that, after allowing the State Department to review
Edwards’ passport, the State Department reported that it could not revoke or
invalidate an expired passport because an expired passport is already invalid.
App. p. 107. Edwards again appealed. App. p. 41. This time the AAO
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affirmed. App. p. 41, 111-113. Edwards then sought judicial review of his
claim to United States citizenship.3 App. p. 15.
After cross-motions for summary judgment, the district court declared
Edwards a United States citizen. App. p. 6-14. The district court
determined that, at a minimum, Edwards’ expired passport constituted a
prima facie showing of United States citizenship. App. p. 10-12. Based on
this finding, the district court shifted the burden to the government to rebut
Edwards’ prima facie showing by clear, unequivocal, and convincing
evidence. Id. Without analysis, the district court determined that the
Government had failed to carry this burden. App. p. 12-13. The district
court then declared Edwards a citizen. Id.
In a lengthy footnote, the district court analyzed Edwards’ claim to
derivative citizenship. App. p. 13. The district court first explained
Edwards’ claim and the Government’s contrary argument. Id. But the
district court decided it need not reach this argument because it had already 3 Edwards originally filed his complaint as a mandamus action seeking an order compelling USCIS to render a decision after the AAO’s remand. App. p. 16. Shortly thereafter, USCIS rendered its second denial. App. p. 41, 103-108. The parties then allowed for extensions of time to allow the AAO appeal to be completed, and on October 11, 2011, Edwards filed an amended complaint seeking judicial review of his claim to citizenship. App. p. 17-18. After a status conference in December 2011, the parties agreed to file a set of undisputed facts and proceed with cross-motions for summary judgment on Edwards’ claim under 8 U.S.C. § 1503. App. p. 18-19. Edwards withdrew all other collateral claims in his amended complaint. App. p. 19.
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held that “Edwards’ passport is sufficient to establish by a preponderance of
evidence that he is a U.S. citizen.” Id. Nevertheless the district court cited
the relevant authority and opined that “it is unlikely that Edwards could
succeed with” his claim to derivative citizenship. Id. This appeal followed.
STATEMENT OF THE CASE Edwards filed N-600 Applications for Certificates of Citizenship in
2001 and 2008 with INS and USCIS, respectively. App. p. 40-41, 81-91.
USCIS denied both applications in 2009, reasoning that Edwards did not
derive United States citizenship through his mother’s naturalization and his
expired passport did not constitute evidence of citizenship. App. p. 41, 93-
95. Edwards appealed. App. p. 41. The AAO affirmed USCIS’s decision
that Edwards did not derive United States citizenship, but it remanded the
case back to USCIS with instructions to allow the Department of State to
review and potentially revoke Edwards’ passport. App. p. 41, 98-104.
After two years, Edwards filed suit in the Eastern District of
Pennsylvania seeking an order to compel USCIS to render a remand
decision. App. p. 16. USCIS then denied Edwards’ application again. App.
p. 41, 103-108. USCIS decided again that Edwards did not derive United
States citizenship, and it noted that the State Department decided that,
because Edwards’ passport was expired, it could not revoke his passport.
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App. p. 103-108. Edwards appealed, and the AAO affirmed. App. p. 41,
111-113.
On October 11, 2011, Edwards filed an amended complaint seeking a
declaration of citizenship under 8 U.S.C. § 1503. App. p. 18, 23-38. The
parties filed undisputed facts and cross-motions for summary judgment.
App. p. 39-41, 114-127, 130-146. On July 26, 2012, the Court granted
Edwards’ motion for summary judgment and declared Edwards a United
States citizen. App. p. 6-14. The Government filed its notice of appeal on
September 20, 2012. App. p. 1-3.
RELATED CASES AND PROCEEDINGS There are no related cases or proceedings relevant to this appeal.
STANDARD OF REVIEW This Court should review de novo the district court’s grant of
summary judgment. Lawrence v. City of Philadelphia, 527 F.3d 299, 310
(3d Cir. 2008).
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SUMMARY OF THE ARGUMENT This Court should vacate the district court’s holding that the
Government did not carry its rebuttal burden and vacate the district court’s
declaration of citizenship because the district court failed to consider the
Government’s rebuttal evidence that Edwards did not derive United States
citizenship. Under 8 U.S.C. § 1503, once a putative citizen makes a prima
facie claim to United States citizenship, the burden shifts to the government
to rebut such claim. Here, the district court shifted the burden to the
Government, but it did not consider its rebuttal evidence. And this error was
harmful because it led to the court to declare Edwards a United States citizen
without ensuring that he actually acquired United States citizenship.
Further, this Court should hold that the Government presented clear,
unequivocal, and convincing evidence that Edwards is not a United States
citizen because he did not derive United States citizenship through his
mother’s naturalization. Under the relevant law, Edwards could only derive
United States citizenship through his mother’s naturalization if his parents
were legally separated. However, at the time his mother naturalized,
Edwards’ parents were not legally separated. Because this is a purely legal
question based on undisputed facts, this Court can and should decide this
issue in the first instance on appeal.
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ARGUMENT
I. The District Court Erred By Failing To Consider The Government’s Rebuttal Evidence That Edwards Is Not A United States Citizen.
The district court erred by failing to consider (or not reaching) the
Government’s rebuttal evidence that Edwards is not a United States citizen.
A putative, derivative citizen4 — such as Edwards — may apply to USCIS
for a Certificate of Citizenship. See 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. If
denied, the putative citizen may appeal to the AAO. 8 C.F.R. §§ 103.3(a),
341.6. And if the denial is upheld, a putative citizen may then seek a
declaration of citizenship in a district court under 8 U.S.C. § 1503(a). 8
U.S.C. § 1503(a); see United States v. Breyer, 41 F.3d 884, 891-92 (3d Cir.
1994).
Under section 1503(a), a putative citizen may seek a declaration of
United States citizenship. Id. Such suit is not limited to review of the
administrative decision or record; rather, it is a trial de novo. See Delmore v.
4 United States citizenship is acquired exclusively through birth and naturalization. Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). Though the Fourteenth Amendment grants citizenship to “all persons born . . . in the United States . . . subject to the jurisdiction thereof,” persons born outside of the United States acquire citizenship only as provided by law. Miller, 523 U.S. at 423. This latter citizenship — citizenship acquired by operation of law — is commonly referred to as “derivative citizenship.” See, e.g., United States v. Breyer, 41 F.3d 884, 891-93 (3d Cir. 1994).
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Brownell, 135 F. Supp. 470, 473 (D.N.J. 1955) (“Delmore I”); Delmore v.
Brownell, 236 F.2d 598, 599 n.5 (3d Cir. 1956) (“Delmore II”).
Plaintiff, of course, has the burden of proving his citizenship, but he need do this by no more than a preponderance of the evidence. While plaintiff carries the ordinary burden of proof, once he makes a prima facie case of citizenship the government’s rebuttal must be by clear, unequivocal and convincing evidence.
Delmore I, 135 F. Supp. at 473. The government’s rebuttal burden is akin to
that which would “sustain a judgment of denaturalization.” Delmore II, 236
F.2d at 600.
Here, the district court erred by failing to consider (or not reaching)
the Government’s rebuttal evidence — its argument that Edwards did not
derive citizenship through his mother’s naturalization. The Government
argued below that under applicable law — 8 U.S.C. § 1432(a)(3) (1990) —
Edwards did not derive United States citizenship through his mother’s
naturalization because, at the time she naturalized, she was not legally
separated from Edwards’ father. App. p. 40, 57, 137-39. The Government
affirmatively moved for summary judgment on this issue, App. p. 137-39,
and the district court recognized that the Government made this argument.
App. p. 13 (“The Government contends that Edwards’ did not derive his
citizenship through his mother’s naturalization because his parents were not
legally separated.”). But the district court did not consider it as rebuttal
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12
evidence. Id. In fact, the district court withheld judgment on this issue
altogether. Id. The district court failed to consider the Government’s
rebuttal evidence, and therefore, the district erred.
Further, this error is harmful because, given the nature of the
Government’s rebuttal evidence, the district court’s declaration of
citizenship is constitutionally suspect. “Once it has been determined that a
person does not qualify for citizenship . . . the district court has no discretion
to ignore the defect and grant citizenship.” Fedorenko v. United States, 449
U.S. 490, 517 (1981) (internal citation and quotation marks omitted). This
proscription emanates from Congress’s exclusive authority to establish a
uniform rule of naturalization. See Miller v. Albright, 523 U.S. 420, 456
(1998) (Scalia, J., concurring). “[W]here an alien does not meet the
statutory requirements for citizenship, a court does not have authority to
confer citizenship through equitable means.” Abreu-Mejia v. Att’y Gen. of
U.S., 393 F. App’x 918, 920 (3d Cir. 2010) (citing INS v. Pangilinan, 486
U.S. 875, 885 (1988)).
Here, the Government’s rebuttal to Edwards’ prima facie claim
consisted of its legal argument (based on undisputed facts) that Edwards did
not satisfy the terms of 8 U.S.C. § 1432(a)(3) and, therefore, did not derive
citizenship through his mother’s naturalization. App. p. 137-39. Though the
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13
district court did not consider this argument in its decision making, it did
note that it was unlikely that Edwards satisfied the terms of 8 U.S.C.
§ 1432(a)(3). App. p. 13. Nevertheless, the court declared Edwards a
United States citizen. Id. It appears, therefore, that the district court granted
Edwards citizenship in spite of his failure to satisfy Congress’s terms of
acquiring citizenship. Had the district court considered and rejected the
Government’s rebuttal evidence, this issue would have been avoided. But it
did not. And as a result, its declaration of citizenship is constitutionally
suspect.
The district court did not complete the burden shifting analysis under
Delmore I and Delmore II because it did not consider the Government’s
rebuttal evidence. As a result, the district court erred by holding that the
Government did not meet its burden of proof. This Court should, therefore,
vacate the district court’s holding that the Government did not carry its
burden and vacate the declaration of citizenship.
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II. The Government Presented Clear, Unequivocal, And Convincing Evidence That Edwards Is Not A United States Citizen.
This Court can and should determine in the first instance that the
Government carried its burden to rebut Edwards’ prima facie claim to
citizenship by clear, unequivocal, and convincing evidence because the
district court failed to reach a pure question of law based on undisputed
facts. “When a district court has failed to reach a question below that
becomes critical when reviewed on appeal, an appellate court may
sometimes resolve the issue on appeal rather than remand to the district
court.” Hudson United Bank v. LiTenda Mort. Corp., 142 F.3d 151, 159 (3d
Cir. 1998). It is appropriate for an appellate court to rule in the first instance
where: the factual record is developed, the question to be decided is purely
legal, the appellate court is exercising plenary review, and resolution of the
issue involves no discretion. Id.; see, e.g., Spruill v. Gillis, 372 F.3d 218,
232 (3d Cir. 2004).
Here, this Court should decide in the first instance whether the
Government carried its burden to rebut Edwards’ prima facie claim to
United States citizenship. First, the parties have already agreed to a set of
undisputed facts, and all of the relevant documents are part of the record.
App. p. 39-41, 43-113. Second, the issue to be decided is purely legal:
whether the Government proved by clear, unequivocal, and convincing
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15
evidence that Edwards is not a United States citizen because he did not
derive citizenship through his mother’s naturalization. Third, this Court’s
review of the district court’s decision on summary judgment is plenary. See
Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). Finally,
there is no room for discretion in the question to be decided. See Fedorenko
v. United States, 449 U.S. 490, 517 (1981) (“Once it has been determined
that a person does not qualify for citizenship . . . the district court has no
discretion to ignore the defect and grant citizenship.”). Therefore, this Court
should determine in the first instance whether the Government proved by
clear, unequivocal, and convincing evidence that Edwards is not a United
States citizen because he did not derive citizenship through his mother’s
naturalization.
Based on the undisputed facts, Edwards is not a United States citizen
because he did not derive United States citizenship through his mother’s
naturalization. Here, Edwards alleges only that he derived citizenship under
1432(a)(3) through the naturalization of his mother who was his legal
custodian and who was, under the law of New York, legally separated from
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16
his father.5 App. p. 124-26. The only issue in dispute here is whether
Edwards’ parents were legally separated.
Though courts of appeals disagree about what is necessary to
demonstrate “legal separation” for purposes of former section 1432(a)(3),
see Claver v. U.S. Att’y Gen., 245 F. App’x 904, 906 (11th Cir. 2007)
(discussing circuit split), this is not an open question in the Third Circuit:
“We hold that a legal separation for purposes of § 1432(a) occurs only upon
a formal governmental action, such as a decree issued by a court of
competent jurisdiction that, under the laws of a state or nation having
jurisdiction over the marriage, alters the marital relationship of the parties.”
Morgan v. Att’y Gen. of U.S., 432 F.3d 226, 234 (2005); see Forrester v.
Att’y Gen. of U.S., 403 F. App’x 744 (3d Cir. 2010) (applying Morgan).
Here, at the time Edwards’ mother naturalized, she was not legally
separated from Edwards’ father. Edwards’ mother’s naturalization
certificate avers that she was married at the time she naturalized, and the
New York Family Court entered a final divorce decree for Edwards’ parents
nearly three years after Edwards’ mother naturalized. App. p. 57, 61-62.
Further, the New York Family Court’s 1978 support orders did not alter
Edwards’ parents’ marital relationship; rather, such orders enforced a marital 5 Edwards does not argue that his parents were legally separated under Panamanian law. App. p. 124-26.
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17
duty. See, e.g., Brissett v. Ashcroft, 363 F.3d 130, 134 (2d Cir. 2004).
Under Morgan, the 1978 support orders are, therefore, not evidence of a
legal separation. 432 F.3d at 234.
Edwards, however, argues that, because the New York Family Court
was on notice that Edwards’ parents were living at different addresses when
it entered the 1978 orders of support, those orders constitute a formal,
governmental recognition of Edwards’ parents’ separation. App. p. 124-26.
This Court should reject this argument.
First, support orders do not alter the marital relationship, they enforce
marital obligations. Brissett, 363 F.3d at 134 (“The support order reaffirmed
[the husband’s] marital duty to provide support to his family, but did not
alter the relationship or rights of the parties in any significant way.”).
Second, Morgan requires formal governmental action to establish a legal
separation, not simply a passive recognition of the fact of separation. 432
F.3d at 234. Finally, section 1432(a) requires more than an informal or
factual separation; it requires “legal” separation. Id.
For these reasons, Edwards did not derive United States citizenship
through his mother’s naturalization. Because Edwards never derived United
States citizenship, the Government has presented sufficient evidence to rebut
Edwards’ prima facie claim to citizenship by clear, unequivocal, and
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18
convincing evidence. This Court should, therefore, vacate the district
court’s holding that the Government did not carry its burden, vacate the
district court’s declaratory judgment, hold that the Government has proven
by clear, unequivocal, and convincing evidence that Edwards is not a United
States citizen, and dismiss this case with prejudice.
In the alternative, this Court should vacate the district court’s
declaratory judgment and its decision that the Government did not carry its
rebuttal burden, and remand this case to the district court with instructions to
consider whether the Government’s argument constitutes clear, unequivocal,
and convincing evidence that Edwards is not a United States citizen.
CONCLUSION For these reasons, this Court should vacate the district court’s
declaratory judgment and its decision that the Government did not carry its
rebuttal burden, and it should affirmatively hold that the Government
rebutted Edwards’ prima facie claim to United States citizenship by clear,
unequivocal, and convincing evidence and dismiss Edwards’ amended
complaint with prejudice.
Or in the alternative, this Court should vacate the district court’s
declaratory judgment and its decision that the Government did not carry its
rebuttal burden, and this Court should remand this case to the district court
Case: 12-3670 Document: 003111083937 Page: 23 Date Filed: 11/20/2012
19
with instructions to consider whether the Government’s argument constitutes
clear, unequivocal, and convincing evidence that Edwards is not a United
States citizen.
Dated: November 20, 2012 Respectfully submitted, ZANE DAVID MEMEGER STUART F. DELERY U.S. Attorney Principle Deputy Assistant Attorney General VERONICA J. FINKELSTEIN JEFFREY S. ROBINS Assistant U.S. Attorney Assistant Director U.S. Attorney’s Office Office of Immigration Litigation 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 s/Bradley B. Banias P: (215) 861-8598 BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Bar: SC 76653 TELE: (202) 532-4809 FAX: (202) 305-7000 E-mail: [email protected] Attorneys for Defendants
Case: 12-3670 Document: 003111083937 Page: 24 Date Filed: 11/20/2012
20
CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)
Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby
certifies that the attached brief of Appellees complies with the typeface, type
styles, and type-volume limitation of Fed. R. App. P. 32(a)(5), (6), and
(7)(B) because the brief is proportionately spaced using Times New Roman
14-point typeface and contains 4,159 words of text, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief was
prepared using Microsoft Word 2010 in fourteen point “Times New Roman”
font. The text of the electronic brief is identical to the text in the paper
copies filed with the Court. The virus detection program, Microsoft
Forefront Client Security version 1.5.1972.0, has been run on the file and no
viruses were detected.
s/Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice Dated: November 20, 2012
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21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 20, 2012, I electronically
filed the foregoing document with the Clerk of the Court using CM/ECF.
Also, on November 20, 2012, I sent a paper copy of Appellants’ Opening
Brief and Appendices to Plaintiff’s counsel at the address below via United
States Postal Service mail in an envelope with pre-paid postage:
Joe Hohenstein Orlow, Kaplan & Hohenstein 620 Chestnut Street, Suite 656 Philadelphia, PA 19106-0000 s/ Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice
Case: 12-3670 Document: 003111083937 Page: 26 Date Filed: 11/20/2012