Jaen V Sessions Opening Brief As Filed

Case 17-1512, Document 64, 09/18/2017, 2127423, Page1 of 46
No. 17-1512
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
LEVY JAEN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF A DECISION OF

THE BOARD OF IMMIGRATION APPEALS
Agency No. 076-187-995
OPENING BRIEF
FOR THE PETITIONER
Andrea A. Saenz Ian Samuel

Brooklyn Defender Services 1648 Massachusetts Ave. #46
180 Livingston Street, Suite 300 Cambridge, MA 02138
Brooklyn, NY 11201 (917) 803-8609
(718) 254-0700 x434
Counsel for Petitioner
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT ........................................................................ 1
ISSUES PRESENTED .............................................................................................. 2
STATEMENT OF THE CASE ............................................................................... 2
A. Jaen’s Family and Birth ................................................................................... 2

B. Jaen’s Removal Proceedings ........................................................................... 3
C. The BIA’s Decision ......................................................................................... 5
SUMMARY OF ARGUMENT ................................................................................ 6
ARGUMENT .............................................................................................................. 8
I. Jorge Boreland is Levy Jaen’s “Parent” ................................................... 9
A. The Text of Former §301........................................................................ 10
1. Jorge Boreland was Jaen’s parent under the common-law meaning

of that term.......................................................................................... 11
2. Jorge Boreland was Jaen’s parent under New York law ................ 13
B. The Structure of the INA Confirms that §301 Does Not Require a
Blood Relationship ................................................................................... 16
C. The Only Court of Appeals to Address This Question Has Concluded

That a Father in Jorge Boreland’s Position is a “Parent” Under Former
§301 ............................................................................................................ 18
II. Jaen Satisfies the Other Requirements for Acquired Citizenship ...... 24
CONCLUSION ........................................................................................................ 26
SPECIAL APPENDIX ..................................................................................... SPA-1
i
TABLE OF AUTHORITIES
Cases
Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) .............................................................. 17

Abreu v. Colvin, 152 F. Supp. 3d 166 (S.D.N.Y. 2015) ...................................................... 15
Alcarez-Garcia v Ashcroft, 293 F.3d 1155 (9th Cir. 2002) ................................................... 25
Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013)............................................................ 17
Barahona v. Holder, 691 F.3d 349 (4th Cir. 2012) ............................................................... 17
Bueno Gil v. Sessions, No. 15-3134 (2d Cir. March 17, 2017) ............................................ 13
Custis v. Murphy, 511 U.S. 485 (1994).................................................................................. 17
Debra H. v. Janice R., 930 N.E. 2d 184 (N.Y. 2010) .......................................................... 16
Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) ........................................................... 1, 20
Estate of Pizarro, 589 N.Y.S.2d 757 (Sup. Ct. 1992) .......................................................... 15
Ex parte Presse, 554 So. 2d 406 (Ala. 1989) ........................................................................ 12
Gupta v. Att’y Gen of the U.S., 52 F.Supp.3d 677 (S.D.N.Y. 2014)................................... 25
Hynes v. McDermott, 91 N.Y. 451 (1883) ............................................................................. 14
In re Adoption of Sebastian, 879 N.Y.S. 2d 677 (N.Y. Sur. Ct. 2009) ................................. 13
In re Burrus, 136 U.S. 586 (1890) ......................................................................................... 13
In re Estate of Fay, 375 N.E.2d 735 (N.Y. 1978) ................................................................ 14
In re Paternity Proceeding L.M., 6 Misc. 3d 151 (N.Y. Fam. Ct. 2004) ............................... 15
Joan G. v. Robert W., 83 A.D.2d 838 (N.Y. App. Div. 1981) ............................................ 15
Jung v. St Paul Fire Dep’t Relief Ass’n, 27 N.W. 2d 151 (Minn. 1947) ............................... 11
Kelly S. v. Farah M., 139 A.D.3d 90 (N.Y. App. Div. 2016) ............................................. 15
Kowalski v. Wojtkowski, 116 A.2d 6 (N.J. 1955).................................................................. 12
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) .......................................................20, 23, 24
Mansell v. Mansell, 490 U. S. 581 (1989) .............................................................................. 13
Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) ............................................. 19
Matter of Findlay, 170 N.E. 471 (N.Y. 1930)....................................................................... 14
Matter of Luna, 18 I&N Dec. 385 (BIA 1983).................................................................... 13
Matter of M-, 7 I&N Dec. 643 (BIA 1958) ......................................................................... 25
Matter of Matthews, 153 N.Y. 443 47 N.E. 901 (1897) ....................................................... 14
Matter of Tijerina-Villarreal, 13 I&N Dec. 327 (BIA 1969).................................................. 8
Michael H. v. Gerald D., 491 U.S. 110 (1989) ...................................................................... 12
Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006) .................................................... 16
Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015)......................................................... 8
ii
Murtagh v. Murtagh, 217 A.D.2d 538 N.Y.S. 2d 78, (2nd Dept. 1995) ............................ 14
Neder v. United States, 527 U.S. 1 (1999) .......................................................................... 7, 11
Nguyen v. Holder, 743 F.3d 311 (2d Cir. 2014).................................................................... 13
Nken v. Holder, 556 U.S. 418 (2009)...................................................................................... 6
Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) ............................................. 10, 16, 17, 20
Phong Thanh Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. 2007)........................................... 1, 8
Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017) .......................... 11
Richard B. v. Sandra B.B., 209 A.D. 2d 139 (N.Y. App. Div. 1995) ................................. 14
Russello v. United Sates, 464 U.S. 16 (1983) .......................................................................... 17
Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) ...............................................................passim
SEC v. Chenery Corp., 332 U.S. 194 (1947) ....................................................................... 8, 9
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005)...........................................passim
T.P. v. B.P., 41 Misc. 3d 1232(A), 2013 WL 6211262 (Sup. Ct., Kings Cty. 2013) ....... 14
Unified School Dist. v. Newdow, 542 U.S. 1 (2004) ................................................................ 13
United States v. Connolly, 552 F.3d 86 (2d Cir. 2008) .......................................................... 20
Weinong Lin v. Holder, 763 F.3d 244 (2d Cir. 2014) ............................................................. 9
Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d 845 (N.Y. Sup. Ct. 2014) ........................ 14, 15
Statutes & Regulations
8 C.F.R. §1003.1(b)(3) ............................................................................................................ 1

8 U.S.C. § 1227(a)(1)(B) ......................................................................................................... 4
8 U.S.C. §1101(c)(2) ............................................................................................................. 10
8 U.S.C. §1401(a)(7) (1972) ..........................................................................................passim
N.Y. Dom. Rel. Law §24(1) ................................................................................................ 14
New York Penal Law (“NYPL”) § 220.09(1) ................................................................. 3, 4
8 U.S.C. §1252............................................................................................................... 1, 8, 25
8 U.S.C. §1409(a)(1) .................................................................................................10, 17, 22
Wash. Rev. Code §26.26.040(1) .......................................................................................... 18
Other Authorities
ANTONIN SCALIA & BRYAN GARNER, READING LAW 249 (2012) ................................. 11
BLACK’S LAW DICTIONARY (10th ed. 2014) ...................................................................... 10
Br. For Respondent, Scales v. INS, No. 97-70915 (9th Cir. Jan. 12, 1999), 1999 WL
33604759 ............................................................................................................................ 21
iii
Br. for Respondent, Solis-Espinoza v. Ashcroft, No. 03-70625 (9th Cir. Oct. 16, 2003),
2003 WL 22768187........................................................................................................... 21
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537
(1947).................................................................................................................................. 11
HENRY KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 77 (1971) ......................... 12
Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to Standing to Rebut
the Marital Presumption of Paternity, 76 N.W.U. L. REV. 669 (1981) ............................... 12
iv
JURISDICTIONAL STATEMENT
Levy Jaen petitions for review of the May 2, 2017 decision of the Board of
Immigration Appeals (“Board” or “BIA”), which ordered him removed from the
United States and determined that he was not a citizen of the United States under
former Section 301(a)(7) of the Immigration and Nationality Act, 8 U.S.C. §1401(a)(7)
(1972). Certified Administrative Record (“CAR”) 3-5. The BIA had jurisdiction over
Jaen’s appeal under 8 C.F.R. §1003.1(b)(3). This Court has jurisdiction over this
petition under 8 U.S.C. §1252(a)(1), which authorizes review of final orders of
removal.
This petition presents questions of law, which this Court has the power to
decide. 8 U.S.C. §1252 (a)(2)(D) (providing for judicial review of Board decisions as to
“constitutional claims or questions of law”); see Duarte-Ceri v. Holder, 630 F.3d 83, 87
(2d Cir. 2010) (noting jurisdiction over claim to United States citizenship raised
through petition for review). In particular, this petition presents a question of
statutory interpretation: what it means to be “born … of parents,” one of whom is a
citizen of the United States, under applicable immigration and family law. Phong Thanh
Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007) (“The phrase ‘questions of law'
encompasses, inter alia, questions of statutory interpretation.”).
This petition was timely filed on May 9, 2017, within thirty days of the final
decision of the BIA. 8 U.S.C. § 1252(b)(1). ECF No. 1.
1
ISSUE PRESENTED
Was Jorge Boreland, a citizen of the United States who was married to Jaen’s
mother for forty-five years including at the time of Jaen’s birth, his legal parent under
former 8 U.S.C. §1401(a)(7) (1972), thus rendering Jaen a citizen at birth?
STATEMENT OF THE CASE
A. Jaen’s Family and Birth
Levy Jaen’s parents, Jorge and Leticia Rogers Boreland, were married in 1952,
and remained married until Jorge’s death in 1999. CAR 351–52 (marriage certificate),
365 (Boreland’s Social Security death record). Jorge Boreland was born in the Panama
Canal Zone in 1927. CAR 338, 349. He moved to New York in the mid-1950s and
became a lawful permanent resident of the United States by 1956. CAR 336-38.
Shortly after becoming a permanent resident, Jorge successfully petitioned for
immigrant visas for Leticia and their two children at the time. Id. The family lived
most of the time in New York, where Jorge worked as a singer (including in the cast
of the 1957 musical “Jamaica”). CAR 340–42.
In 1961, Jorge became a naturalized United States citizen, see CAR 346-47, and
lived in the United States continuously until the 1970s, making brief trips abroad to
see family in Panama or for his entertainment career. 1 Prior to Jaen’s birth, Jorge and
1As noted before the Board of Immigration Appeals, the government has not
disputed that Jorge Boreland naturalized in 1961. Petitioner received Boreland’s
2
Leticia Boreland had seven children, three of whom were born in Panama and four of
whom were born in the United States. CAR 322, 326, 328.
In May 1972, Petitioner Levy Jaen was born to Leticia Rogers Boreland while
she was abroad in Panama. CAR 351, 353 (birth certificate). Jaen’s biological father
may be a man named Liberato Jaen, who is named on one of his birth certificates,
although there is no evidence that Liberato Jaen himself has acknowledged this fact or
asserted any parental right or interest. Leticia remained married to Jorge, who
acknowledged and accepted Levy as his own son. CAR 322, 328. A birth certificate
issued to Levy in 1977 lists Jorge Boreland as his father, Leticia Boreland Rogers as
his mother, and gives Levy’s name as “Levy Boreland Rogers.” CAR 355-56. Levy was
raised as the youngest child of Jorge and Leticia Boreland, along with his older
siblings, and his family assumed his that Levy was a United States citizen along with
the rest of them. See CAR at 328-9.
Levy Jaen has lived in New York continuously for nearly thirty years, since he
was a junior high school student in Queens, and is the father of four United States
citizen children. See CAR 233-36, 359, 361.
B. Jaen’s Removal Proceedings
naturalization certificate confirming this fact as part of a production under the

Freedom of Information Act (“FOIA”) while this matter was before the BIA, and is
prepared to produce it if requested. See CAR 9.
3
In 2008, Jaen was convicted of criminal possession of a controlled substance in
the fourth degree, New York Penal Law (“NYPL”) § 220.09(1), and in 2014, he was
again convicted under NYPL § 220.09(1). CAR 680. In April 2015, while Jaen was
serving his sentence for the latter conviction, Immigration and Customs Enforcement
(“ICE”) served Jaen with a Notice to Appear, charging him with removability under
INA § 237(a)(1)(B) and 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(1)(B) and 1227(a)(2)(B)(i).
CAR 678-80.
While pro se before the Immigration Judge (“IJ”), Jaen raised repeatedly whether
he had acquired United States citizenship through Jorge Boreland, his mother’s
husband, who he had always considered his father. CAR 91-136. The IJ discussed this
claim with Jaen during several hearings, but did not complete the proceedings before
Jaen completed his criminal sentence. Jaen was transferred to ICE custody in May
2016, and his removal proceedings were transferred to the Varick Street Immigration
Court in New York City. CAR 147.
In October 2016, now represented by counsel, Jaen filed a motion to terminate
his removal proceedings with supporting documentation, arguing that he had acquired
citizenship at birth. CAR 303-414. Jaen noted the particular relevance of two decisions
from the Ninth Circuit, finding acquisition of citizenship in circumstances nearly
identical to his. See Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000); Solis-Espinoza v.
Gonzales, 401 F.3d 1090 (9th Cir. 2005).
4
On December 8, 2016, the Immigration Judge issued a written order denying
the motion and ordering Jaen removed to Panama. CAR 61-66. The IJ did not dispute
that Jorge Boreland was a U.S. citizen who was married to Jaen’s mother at the time
of Jaen’s birth. CAR 65. Instead, the IJ found it dispositive that someone other than
Jorge Boreland was on Jaen’s initial birth certificate, and found that Jaen could not be
the “legitimate son” of Boreland. CAR 64-65. He further found that it was relevant
that the petitioners in Scales and Solis-Espinoza were “raised from birth by their citizen
and noncitizen parents” and that Jaen had spent part of his childhood with his
grandparents, CAR 65, though the IJ had never held an evidentiary hearing to develop
the record on the circumstances of Jaen’s childhood.
C. The BIA’s Decision
Jaen timely appealed to the BIA. Jaen argued again that Boreland was his legal
parent at his birth under long-standing New York and common law, and that the IJ’s
focus on Jaen’s first birth certificate and his findings about the nature of Jaen’s
parent-child relationship with Boreland, especially in the absence of any evidentiary
hearing, were in error. CAR at 6-25.
On May 2, 2017, the BIA dismissed the appeal and affirmed the IJ’s order of
removal. CAR 3-5. The BIA acknowledged that “the respondent’s mother was
married to a United States citizen at the time of the respondent’s birth.” CAR 4. The
agency observed that Boreland was “not the respondent’s biological father,” and
acknowledged that the Ninth Circuit had concluded that the acquired-citizenship
5
statute “does not require a blood relationship.” Id. Nonetheless, the Board rejected
Jaen’s claim. The agency’s reasoning, in full, was a single paragraph:
If the respondent’s mother’s husband was listed on his initial birth certificate
and this case arose in the Ninth Circuit, we would agree with the respondent’s
argument. Inasmuch as those facts are not present here, we are not so
persuaded. This case arises in the jurisdiction of the Second Circuit and we are
required to apply Second Circuit law. Moreover, the Ninth Circuit’s reasoning
does not distinguish between situations where the biological father is listed as
the parent on the birth certificate (as in this case) and situations where there is
no evidence of any non-biological connection between the biological father and
the child (as in the case of Solis-Espinoza [v. Gonzales, 401 F.3d 1090 (9th Cir.
2005)]).
CAR 4. The agency further concluded that events arising after Jaen’s birth were
irrelevant because the statute is concerned exclusively with citizenship “at birth.” Id.
(emphasis in original).
This petition for review timely followed. Jaen moved for a stay of removal
pending the resolution of this petition for review, arguing that he was likely to succeed
on appeal and otherwise met the standards of Nken v. Holder, 556 U.S. 418 (2009).
ECF No. 17. Over the government’s opposition, ECF No. 27, this Court entered a
stay of removal on August 8, 2017, ECF No. 52.
SUMMARY OF ARGUMENT
At the time of Jaen’s birth, a person born outside the United States was a
citizen at birth if (1) they were born “of parents one of whom is an alien, and the
other a citizen of the United States,” and (2) the citizen parent “was physically present
6
in the United States or its outlying possessions for a period or periods totaling not less
than ten years, at least five of which were after attaining the age of fourteen years.” 8
U.S.C. §1401(a)(7) (1972). Jaen satisfies those requirements.
First, Jorge Boreland was Jaen’s “parent.” Because the INA does not define the
term “parent,” the term is presumed to have its settled meaning at common law. Neder
v. United States, 527 U.S. 1, 23 (1999). The term “parent” had a well-settled definition
at common law, and included the husband of a woman who gave birth to a child—
even when that child had no biological relationship to her husband. The State of New
York retains that traditional rule, meaning that Boreland (as a resident of New York)
was regarded by his own State as Jaen’s parent the day he was born. And the structure
of the INA confirms this reading of the text: former Section 301 makes no mention
of a blood relationship, which other provisions of the INA relating to citizenship at
birth do. For these reasons, the only court of appeals to consider whether a person in
Boreland’s position is a “parent” for purposes of former Section 301 has, on this
basis, repeatedly held that the answer is yes. See, e.g., Scales v. INS, 232 F.3d 1159, 1164
(9th Cir. 2000); Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).
Second, assuming Boreland was Jaen’s parent, then the other requirements of
Section 301 are easily satisfied, and the agency did not conclude to the contrary.
Boreland became a United States citizen in 1961, well prior to Jaen’s birth, and he was
physically present in the United States for ten years prior to Jaen’s birth. If, however,
this Court regards the other requirements of former Section 301 as in doubt, the
7
proper course would be to transfer this proceeding to the Eastern District of New
York—not back to the agency. See 8 U.S.C. §1252 (b)(5)(B).
ARGUMENT
Where, as here, “the petitioner claims to be a national of the United States” and
“no genuine issue of material fact about the petitioner’s nationality is presented,” this
Court decides the citizenship claim de novo. Morales-Santana v. Lynch, 804 F.3d 520, 525
(2d Cir. 2015), aff’d in relevant part sub nom Sessions v. Morales-Santana, No. 15-1191 (S. Ct.
June 12, 2017) (quoting 8 U.S.C. § 1252 (b)(5)(A)). See also Phong Thanh Nguyen, 501
F.3d at 111 (“We apply de novo review to questions of law raised in petitions for review
of removal orders”). As the Board acknowledged, the “applicable law for transmitting
citizenship to a child born abroad when one parent is a U.S. citizen is the statute that
was in effect at the time of the child’s birth.” Scales v. INS, 232 F.3d 1159, 1163 (9th
Cir. 2000). And the BIA has long held that removal proceedings should be terminated
where an individual presents a mere “preponderance of credible evidence sufficient to
rebut the presumption of alienage which attaches by reason of his birth” abroad.
Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969).
Further, when a reviewing court is considering agency action, “the propriety of
such action” may be sustained “solely by the grounds invoked by the agency.” SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947). “If those grounds are inadequate or improper,
the court is powerless to affirm the administrative action by substituting what it
8
considers to be a more adequate or proper basis.” Id. “To do so would propel the
court into the domain which Congress has set aside exclusively for the administrative
agency.” Id. This principle applies to immigration cases just as it applies to other cases.
See, e.g., Weinong Lin v. Holder, 763 F.3d 244, 249 (2d Cir. 2014) (noting that when “the
BIA has not presented us” with certain arguments, “we express no view” on them). If
the order below is to be sustained, therefore, it must be sustained only on the grounds
invoked by the agency.
At the time of Jaen’s birth, former INA §301(a)(7) provided that a person born
outside the United States was a citizen at birth if (1) they were born “of parents one
of whom is an alien, and the other a citizen of the United States,” and (2) the citizen
parent “was physically present in the United States or its outlying possessions for a
period or periods totaling not less than ten years, at least five of which were after
attaining the age of fourteen years.” 8 U.S.C. §1401(a)(7) (1972). For the reasons set
forth below, Jaen satisfies those requirements. He was born to a parent, Jorge
Boreland, who was a United States citizen at the time of Mr. Jaen’s birth. And
Boreland was physically present in the United States for the required period. The
order of the Board of Immigration Appeals is therefore contrary to law, and this
Court should set it aside.
I. Jorge Boreland is Levy Jaen’s “Parent”
On the day Levy Jaen was born, Jorge Boreland was his legal parent for the
purposes of former §301. The term “parent” had a well-settled definition at common
9
law, and included the husband of a woman who gave birth to a child—even when that
child had no biological relationship to her husband. The State of New York retains
the traditional rule, meaning that Boreland (as a resident of New York) was regarded
by his own State as Jaen’s parent the day he was born.
The structure of the INA confirms this reading of the text. Section 301 makes
no mention of a blood relationship—which other provisions of the INA do. See 8
U.S.C. §1409(a)(1).
The only court of appeals to consider whether a person in Boreland’s position
is a “parent” for purposes of former Section 301 has, on this basis, repeatedly held
that the answer is yes. See, e.g., Scales v. INS, 232 F.3d 1159, 1164 (9th Cir. 2000); Solis-
Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).
A. The Text of Former §301
“When interpreting a statutory provision, we begin with the language of the
statute.” Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). Although the
Immigration and Nationality Act contains an extensive definitional section, it contains
no definition of the word at issue here—“parent.” See 8 U.S.C. §1101(c)(2) (providing
only that the term “parent” includes “in the case of a posthumous child,” a “deceased
parent”). In ordinary legal usage, “parent” defines a legal, rather than a biological,
relationship. BLACK’S LAW DICTIONARY (10th ed. 2014) (“The lawful father or
mother of someone”). (By contrast, the term “biological parent,” “genetic parent,” or
“birth parent” is used to describe a strictly biological relationship. Id.)
10
The term “parent,” moreover, has a well-settled definition at common law and
under New York law. The word, “transplanted from … the common law” and state-
level “legislation,” therefore “brings the old soil with it.” Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947). And under
those well-settled definitions, a man who is married to a woman that gives birth to a
child is by definition that child’s parent.
1. Jorge Boreland was Jaen’s parent under the common-law meaning

of that term
To begin, it is presumed “that Congress intends to incorporate the well-settled
meaning of the common-law terms it uses.” Neder v. United States, 527 U.S. 1, 23
(1999). That is in accord with the general rule that “statutes will not be interpreted as
changing the common law unless they effect change with clarity.” ANTONIN SCALIA &
BRYAN GARNER, READING LAW 249 (2012). The “age-old principle” that “words
undefined in a statute are to be interpreted and applied according to their common-
law meanings” includes family-law terms like “child” (or, here, parent). Id. at 251. See
Jung v. St Paul Fire Dep’t Relief Ass’n, 27 N.W. 2d 151, 154 (Minn. 1947) (applying this
principle to the term “child”). Therefore, where the text of a statute “evidences no
intent to deviate from common law rules,” then this Court must apply “the common
law definition of the term when interpreting the act.” Reyes v. Lincoln Automotive
Financial Services, 861 F.3d 51, 56–57 (2d Cir. 2017).
11
Under the common-law definition of the term, a man who is married to a
child’s mother when the child is born is that child’s parent, and Boreland is therefore
Jaen’s. A “fundamental principle of the common law” was that, when a man and
woman were married and the woman gave birth to a child, that man was the child’s
legitimate parent. Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989) (plurality
opinion by Scalia, J.). This principle was grounded in an aversion to “declaring
children illegitimate” and thereby “depriving them of rights” they would otherwise
have. Id. at 125. This principle, known as pater est quem nuptiae demonstrant (literally, “the
nuptials show who is the father”) is often described as “one of the strongest
presumptions known to the law.” Ex parte Presse, 554 So. 2d 406, 413 (Ala. 1989)
(quoting Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to Standing
to Rebut the Marital Presumption of Paternity, 76 N.W.U. L. REV. 669 (1981)). See also
Kowalski v. Wojtkowski, 116 A.2d 6, 261 (N.J. 1955) (“Under the common law,” a child
“born or conceived in lawful wedlock” is the legitimate child of his mother and her
husband).
Therefore, a case like this one—where “the married mother … brings into the
world a child of someone not her husband”—is “not a difficult [one].” HENRY
KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 77 (1971). The husband is the
parent of the child. See also HARRIS NICHOLAS, A TREATISE ON THE LAW OF
ADULTURINE BASTARDY 1 (1836) (“The Common Law, however, adopted as a
fundamental principle, the maxim of civilians, that marriage is the proof of paternity.”). At
12
common law, in other words, a “parent” was created by one of “two events”: (1) “a
child’s birth to its mother,” or (2) “the mother’s marriage to a man.” In re Adoption of
Sebastian, 879 N.Y.S. 2d 677, 679 (N.Y. Sur. Ct. 2009). Because it is undisputed that
Jorge Boreland was married to Jaen’s mother at the time of his birth, Boreland was
Jaen’s “parent” as the common law understood that term.
2. Jorge Boreland was Jaen’s parent under New York law
When interpreting the domestic-relations terms of the INA, federal courts
borrow state-law definitions. In Nguyen v. Holder, for example, this Court (in accord
with the position of both parties) analyzed whether “New York law” regarded the
petitioner’s marriage as “void for incest.” 743 F.3d 311, 314 (2d Cir. 2014). See also
Bueno Gil v. Sessions, No. 15-3134 (2d Cir. March 17, 2017) (analyzing whether the
petitioner qualified as a “child” under New York law, to evaluate whether he was a
citizen). See also Matter of Luna, 18 I&N Dec. 385, 386 (BIA 1983) (existence of a
valid marriage is determined by law of place of celebration). That is in accord with the
traditional rule that the “whole subject of the domestic relations of husband and wife,
parent and child” belongs “to the laws of the States and not to the laws of the United
States.” In re Burrus, 136 U.S. 586, 593–94 (1890). See also Mansell v. Mansell, 490 U. S.
581, 587 (1989) (“[D]omestic relations are preeminently matters of state law”); Elk
Grove Unified School Dist. v. Newdow, 542 U.S. 1, 13 (2004) (“[I]n general it is appropriate
for the federal courts to leave delicate issues of domestic relations to the state
courts”).
13
Thus, in Scales and Solis-Espinoza, the Ninth Circuit applied the relevant
domestic relations laws of Washington and California, respectively, to reach the
results that the petitioners had acquired U.S. citizenship at birth. Scales, 232 F.3d at
1163-64; Solis-Espinoza, 401 F.3d at 1093-94. Respondent has never suggested that the
Ninth Circuit was wrong to do so or argued that there is a source for the definition of
“parent” in §301 outside the applicable state law. Indeed, in dismissing Jaen’s appeal,
the BIA did not define “parent” at all.
Under New York law, where Boreland was a long-time resident and where Jaen
came to live, CAR 326, 328, 332, a child born to a married couple is the “legitimate
child” of both parents. N.Y. Dom. Rel. Law §24(1). New York’s public policy
“strongly favors the legitimacy of children,” Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d
845, 848 (N.Y. Sup. Ct. 2014), and the “presumption that a child born to a marriage is
the legitimate child of both parents is one of the strongest and persuasive known” to
the State’s law, In re Estate of Fay, 375 N.E.2d 735 (N.Y. 1978). See also Matter of
Findlay, 170 N.E. 471 (N.Y. 1930); Hynes v. McDermott, 91 N.Y. 451, 458 (1883); Matter
of Matthews, 153 N.Y. 443, 447, 47 N.E. 901 (1897); Murtagh v. Murtagh, 217 A.D.2d
538, 539, 629 N.Y.S. 2d 78, (2nd Dept. 1995); T.P. v. B.P., 41 Misc. 3d 1232(A), 2013
WL 6211262 (Sup. Ct., Kings Cty. 2013).
This presumption, to be sure, is not inviolable. But it “will not fail unless
common sense and reason are outraged by a holding that it abides.” Richard B. v.
Sandra B.B., 209 A.D. 2d 139, 142 (N.Y. App. Div. 1995) (internal quotation marks
14
and citations omitted). For example, a woman’s marriage to a man establishes that
man’s paternity even if—as here—the mother lists another man as the father in
hospital records or on the child’s birth certificate. Estate of Pizarro, 589 N.Y.S.2d 757,
759 (Sup. Ct. 1992). The presumption is not rebutted even when the couple has
temporarily separated when the child is conceived and born. Joan G. v. Robert W., 83
A.D.2d 838, 839 (N.Y. App. Div. 1981) (noting “strong presumption that the subject
child was born legitimately of petitioner’s marriage, even though petitioner was
separated from her husband”). And the presumption holds even when it is certain that
the child is not biologically related to his mother’s spouse, as it is in a same-sex
relationship. Kelly S. v. Farah M., 139 A.D.3d 90, 101 (N.Y. App. Div. 2016) (same-sex
spouse who did not give birth to the child “is presumed to be the natural parent of
[the children] by virtue of the parties’ [registered domestic partnership and
subsequent] marriage”); see also Wendy G-M v. Erin G-M, 985 N.Y.S. at 848 (same).
Even when the presumption is rebutted, a man’s status as a “parent” may only
be terminated if the child, a putative legal or biological parent, or an individual or
entity standing in their stead successfully petitions a State court to rebut the
presumption of legitimacy. See, e.g., Richard B., 209 A.D. 2d at 141 (petition by non-
biological former spouse to deny parentage); In re Paternity Proceeding L.M., 6 Misc. 3d
151, 152 (N.Y. Fam. Ct. 2004) (petition by biological parent to declare the unmarried
biological parent as a “parent” in lieu of non-biological former spouse); cf. Abreu v.
Colvin, 152 F. Supp. 3d 166, 175-76 (S.D.N.Y. 2015) (reversing the Commissioner of
15
Social Security’s denial of benefits to the deceased non-biological spouse’s children
who were born during the course of his marriage to their biological mother, even
where DNA evidence confirmed their non-biological relationship). No such action
has ever been undertaken by Jaen, Jorge Boreland, or Jaen’s putative biological father.
Quite to the contrary: Jaen moved to the United States and was raised as Boreland’s
child. CAR 322, 328, 358-59.
On the day Mr. Jaen was born, he therefore became—by operation of New
York law—the “legitimate child” of both his mother and her husband, Boreland. It
makes no difference that Jorge Boreland and Jaen have no biological relationship.
Even a spouse with no “biological connection” to the child is a parent so long as
there is a “valid legal union at the time of the child’s birth.” Miller-Jenkins v. Miller-
Jenkins, 912 A.2d 951, 967, 970 (Vt. 2006); see also Debra H. v. Janice R., 930 N.E. 2d
184 (N.Y. 2010) (approving Miller-Jenkins). The lack of a biological relationship
between Jorge Borland and Mr. Jaen is therefore irrelevant.
B. The Structure of the INA Confirms That §301 Does Not Require a Blood
Relationship
A statute’s meaning must be determined by “looking to the statutory scheme as
a whole and placing the particular provision within the context of that statute.”
Nwozuzu, 726 F.3d at 327. In particular, when “Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
16
inclusion or exclusion.” Russello v. United Sates, 464 U.S. 16, 23 (1983); see also
Nwozuzu, 726 F.3d at 327–28 (applying this principle in a derivative-citizenship case).
The Board has itself invoked this rule in the interpretation of the INA. See, e.g.,
Annachamy v. Holder, 733 F.3d 254, 261 (9th Cir. 2013) (overruled on other grounds by
Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014)) (crediting the Board’s view that the
explicit presence of an “involuntariness” exception to the membership-in-a-
totalitarian-party bar negates an implicit such exception to the material-support-for-
terrorism bar); Barahona v. Holder, 691 F.3d 349, 354–55 (4th Cir. 2012) (same).
The text of former §301 contains “no requirement of a blood relationship,”
Scales, 232 F.3d at 1164. Other portions of the INA, by contrast, do. When a child is
born to an unmarried mother, the INA requires the establishment of “a blood
relationship,” by “clear and convincing evidence,” before the child may inherit
citizenship from a citizen father. 8 U.S.C. §1409(a)(1). Yet Congress elected not to
include that requirement for children born in wedlock, as Mr. Jaen was. Had the
legislature meant to depart from the traditional common-law rule, and require that a
“parent” have a biological relationship for purposes of former §301, “it knew how to
do so.” Scales, 232 F.3d at 1164 (quoting Custis v. Murphy, 511 U.S. 485, 492 (1994)).
Because Congress included no requirement of a blood relationship between parents
like Jorge Boreland and children like Jaen, that decision must be given effect.
17
C. The Only Court of Appeals to Address This Question Has Concluded

That a Father in Jorge Boreland’s Position is a “Parent” Under Former
§301
The Ninth Circuit is the only court of appeals to address the question, and has
confirmed that a father recognized as a parent by state law is therefore, also, a
“parent” for purposes of former §301, regardless of whether or not that parent has a
blood relationship with the child. In Scales, just as here, the petitioner was born abroad
to a non-citizen mother, who was married to an American citizen. 232 F.3d at 1161–
62. Just as here, Scales had no biological relationship to his mother’s husband. Id. But
just as here, the law of the state in which Scales’ father resided (there, Washington)
had codified the traditional “presumption that a man is the natural father of a child
born during marriage.” Id. at 1163 (citing Wash. Rev. Code §26.26.040(1)). The Ninth
Circuit had no trouble concluding that Scales was a citizen at birth:
[Former Section 301] requires only that Petitioner be “born ... of parents,” one
of whom is a U.S. citizen, in order to acquire citizenship. The record is
uncontroverted that Petitioner was born to Topaz and Scales during their
marriage. There is no requirement of a blood relationship between Petitioner
and his citizen father, as there is for an illegitimate child. We therefore hold that
Petitioner acquired citizenship at birth…
Id. at 1166.2
2
The Scales court also explained in detail why general statements in the Foreign Affairs
Manual that acquisition of U.S. citizenship always requires a “blood relationship” are
not dispositive, and the government did not press this theory below. The FAM is not
an agency interpretation of former INA §301 specifically, and does not warrant
Chevron deference because it is not the result of formal agency rulemaking, and at any
rate it is the Department of Justice, not the Department of State, that is charged with
18
Illustrating the point even more forcefully, in Solis-Espinoza v. Gonzales, the
Ninth Circuit held that the petitioner had acquired citizenship at birth because his
biological, non-citizen father was married to an American woman who was not his
biological mother—that is, his father’s citizen wife had not given birth to him. 401 F.3d
1090 (9th Cir. 2005). (Solis-Espinoza had been abandoned by his birth mother and
raised by his father and his wife.) Just as here, under the law of California, his father’s
marriage rendered his wife Solis-Espinoza’s legal parent. And the Ninth Circuit—
applying Scales—concluded that he was therefore “entitled to be recognized as a
citizen.” Id. at 1094. The INA, the court observed, was “intended to keep families
together,” and so should be “construed in favor of family units and the acceptance of
responsibility by family members.” Id. The rule of Scales and Solis-Espinoza suffices to
decide this case.
This Court has not yet had an occasion to resolve this question. And the Fifth
Circuit has declined to reach it in the only other case of which counsel is aware. See
Marquez-Marquez v. Gonzales, 455 F.3d 548, 557-60 (5th Cir. 2006) (declining to decide
whether to adopt the reasoning of Scales and Solis-Espinoza, because the petitioner’s
U.S. citizen stepfather had not been married to her mother at the time of her birth).
But this Court has disapproved one attempt by the government to define “father”
narrowly, in a different acquired citizenship case. See United States v. Connolly, 552 F.3d
interpreting the citizenship statute for a person in the United States. Scales, 232 F.3d at
1165-66.
19
86, 88-91 (2d Cir. 2008). See also Nwozuzu, 726 F.3d at 333 (concluding that BIA’s
interpretation of the derivative-citizenship statute was “inconsistent with the text of
the statute”); Duarte-Ceri v. Holder, 630 F.3d 83, 88-89 (2d Cir. 2010) (refusing to give
effect to the government’s proposed “legal fiction” where it would deny “the most
precious right” of citizenship).
This Court has also recognized that the Second and Ninth Circuits are
distinctive in their heavy immigration caseloads. See Lora v. Shanahan, 804 F.3d 601,
615–16 (2d Cir. 2015) (noting “the Second and Ninth Circuits have been
disproportionately burdened by a surge in immigration appeals and a corresponding
surge in the sizes of their immigration dockets”). A division of authority on a question
of immigration law between the two would therefore be particularly disruptive and
intolerable.
In its decision, the BIA did not conclude that Scales and Solis-Espinoza were
wrongly decided. Rather, the BIA reasoned (CAR 4) that the Ninth Circuit had not
distinguished between “situations where the biological father is listed as the parent on
the birth certificate (as in this case) and situations where there is no evidence of any
non-biological connection between the biological father and the child (as in the case
of Solis-Espinoza v. Gonzales)3.” The agency did not cite any authority for, or explain,
3Compounding the difficulty of understanding the BIA’s distinctions, Solis-Espinoza is

the case in which the petitioner derived U.S. citizenship through his non-biological
U.S. citizen mother, not his father, so the meaning of their citation to that case is
unclear. The BIA did not explain why Jaen’s biological father being listed on one of
20
the proposition that a biological parent’s presence on a foreign birth certificate
matters in determining a person’s parents at birth. The lack of a biological connection
was irrelevant in both Scales and Solis-Espinoza: In both cases, the evidence was quite
clear that the citizen parent had no biological relationship to the petitioner: Scales’
father signed an affidavit thus attesting, 232 F.3d at 1161, and in Solis-Espinoza, the
petitioner had been born to another woman, 401 F.3d at 1090.
Nothing, moreover, in either Scales or Solis-Espinoza turns on the contents of a
birth certificate. In fact, although the government’s brief in Solis-Espinoza complained
that “a birth certificate which lists” anyone other than the petitioner’s biological
mother would not be “accurate,” Br. for Respondent, Solis-Espinoza v. Ashcroft, No.
03-70625 (9th Cir. Oct. 16, 2003), 2003 WL 22768187, the Solis-Espinoza opinion
mentions the birth certificate only once in passing, and nothing in the court’s analysis
turned on the matter. 401 F.3d at 1090. Scales says nothing at all about the petitioner’s
birth certificate or who was listed on it. 232 F.3d at 1161–62, though the
government’s brief argued that the petitioner’s birth certificate actually demonstrated
that his citizenship claim was “frivolous,” because it showed that he “was born after a
full term 42-week pregnancy,” meaning that his mother was “twelve weeks pregnant”
when she met his citizen father. Br. For Respondent, Scales v. INS, No. 97-70915 (9th
Cir. Jan. 12, 1999), 1999 WL 33604759. Moreover, in Solis-Espinoza, just as here, the
his birth certificates constituted a “non-biological connection” that is relevant to the

definition of “parent” in §301(a)(7).
21
identity of the child’s biological mother was known: the opinion gives her name as
“Maria Luisa Cardoza,” identifies her as a Mexican citizen, and describes her as having
abandoned the petitioner at birth. Id. at 1091–92. Why it would make any difference if
she was listed on a birth certificate, the agency did not say.
Similarly, the decision of the immigration judge here (CAR 64-65) distinguished
Scales and Solis-Espinoza on the grounds that the petitioners in those cases were “raised
from birth by their citizen and noncitizen parents.” (Jaen spent his early years with his
grandparents in Panama. CAR 322, 328.) But the IJ’s focus on the nature of the
relationship between Jorge Boreland and Mr. Jaen after his birth was inappropriate.
Former §301 governs citizenship at birth. The title of the section, in fact, is “Nationals
and Citizens of the United States at Birth.” 8 U.S.C. §1401. As if that were not clear
enough, the statute begins by providing that the “following shall be nationals and
citizens of the United States at birth.” Id. (emphasis added). It then lists several
categories of people, one of which (people born to abroad to one citizen and one
non-citizen parent) covers Mr. Jaen. Nothing in former §301 calls for an evaluation of
circumstances after the person’s birth and as a matter of both textual and temporal
logic, no such evaluation is permissible. By contrast, for children born out of wedlock,
events after birth are explicitly made relevant. See, e.g., 8 U.S.C. §1409(a)(3) (father
must agree in writing to financially support the child).
As argued above, that difference in text and structure must be given a
difference in meaning. Events after Mr. Jaen’s birth are thus irrelevant to whether he
22
was a citizen on the day he was born. Put differently, it must be possible under §301
to answer the question “is this child an American citizen?” on the day that child is born.
(What if a passport application were made for the child on that very day, for
example?) And on the day the child is born, it is impossible to evaluate anything other
than the factors listed in the text. The BIA, in its decision, appeared to acknowledge
as much. CAR 4.
Finally, the distinction the agency drew between this case and Scales is
unpersuasive on its own terms. What the agency appears to have contemplated is a
freewheeling all-things-considered inquiry as to the nature of the relationship between
a young child and his citizen parent—to put it in the BIA’s terms, an inquiry into
whether there is any “non-biological” connection between a child and his parent. The
BIA did not provide any definition of “parent”, sources of authority, or standards to
guide this inquiry. While that “case-by-case approach might be workable in circuits
with comparatively small immigration dockets,” in places like the Second and Ninth
Circuits, “predictability and certainty are considerations of enhanced importance.”
Lora, 804 F.3d at 616. The rule adopted by agency here, by contrast, will guarantee
“pervasive inconsistency and confusion.” Id. at 615.
As human experience readily demonstrates, evaluating the closeness and extent
of a parent-child “connection” is not easy, and every case will present new and
unanswerable questions. What if Jaen had moved to the United States when he was 5
years old? Good enough? How about 13 years old? What if he had spoken to Jorge
23
Boreland every day on the phone? Once a week? Does it matter how long the calls
were? What if he had visited often, but not moved permanently until adulthood? Are
summers with his father good enough, or must he have fatherly guidance on his
homework during the school year, too? Decisions about citizenship should not turn
on the answers to questions like that. These are matters of grave and “real-life
consequences for immigrants and their families.” Id. at 616. The value of a law of rules
is nowhere more valuable than here.
II. Jaen Satisfies the Other Requirements for Acquired Citizenship
If Jorge Boreland is Jaen’s parent, then he is entitled to citizenship as the other
requirements of former §301 are neither in doubt nor contested by the government.
First, Jorge Boreland became a U.S. citizen on January 30, 1961. The Boreland family
has located an early passport of Jorge Boreland’s issued in 1975, which contains a
handwritten “Petition” and number and the date “1/30/61,” and counsel has now
obtained both written confirmation from government counsel that this is correct and
the original documents indicating that it is so. See CAR 9 n.1, 346-47.
In addition, Jorge Boreland was physically present in the United States or its
outlying possessions for ten years or more, including five years after the age of
fourteen. He began living in the U.S. legally in 1955 and worked as a singer and
entertainer in New York while fathering and raising four children who were born in
New York between 1957 and 1962. See CAR 322, 328, 340-42 (Broadway cast
recording notes showing Mr. Boreland was in the cast of the 1957 musical “Jamaica”).
24
Mr. Boreland appears to have resided in New York or Puerto Rico through the 1970s,
with occasional brief trips to Panama for family reasons or to other countries for his
entertainment career. See CAR 322, 326, 328. Courts have not required day-by-day
accountings of time to find this requirement satisfied. See Matter of M-, 7 I&N Dec.
643, 645 (BIA 1958) (adding two periods of U.S. residence together to reach the
required 10 years); Alcarez-Garcia v Ashcroft, 293 F.3d 1155, 1158 (9th Cir. 2002)
(residence requirements met even where father lived in U.S. 9 months a year and
visited Mexico the other 3 months); Gupta v. Att’y Gen of the U.S., 52 F.Supp.3d 677,
683 (S.D.N.Y. 2014) (petitioner proved 10-year requirement by preponderance of the
evidence despite pages missing from father’s passport).
If, however, this Court regards the other requirements of former Section 301 as
in doubt, the proper course would not be to remand to the agency. If a petitioner
“claims to be a national of the United States and the court of appeals finds that a
genuine issue of material fact about the petitioner’s nationality is presented,” then this
Court must “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.” 8 U.S.C. §1252 (b)(5)(B). Jaen resides in Queens County, New York, CAR
559, and the appropriate district court would therefore be the Eastern District of New
York.
25
CONCLUSION
For the foregoing reasons, this Court should determine that Jaen was a United
States citizen at birth in accordance with 8 U.S.C. §1401(a)(7) (1972), and direct the
government to terminate removal proceedings.
Dated: September 18, 2017
Respectfully submitted,
/s/Andrea A. Saenz
Andrea A. Saenz
Brooklyn Defender Services
180 Livingston Street, Suite 300
Brooklyn, NY 11201
(718) 254-0700 x434
Ian Samuel
1648 Massachusetts Ave. #46
Cambridge, MA 02138
(917) 803-8609
26
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B), because the brief contains 6,794 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R.
App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14 point Garamond.
Dated: September 18, 2017 /s/ Andrea A. Saenz

Andrea A. Saenz, Esq.
Brooklyn Defender Services
180 Livingston St., Suite 300
Brooklyn, NY 11201
27
JAEN V. SESSIONS, NO. 17-1512
SPECIAL APPENDIX
Orders Under Appeal
Decision and Order of the Board of Immigration Appeals, May 2, 2017……SPA-1
Decision and Order of the Immigration Judge, Dec. 8, 2016………………..SPA-5
Text of Relevant Statutes
Immigration and Nationality Act §301(a)(7) (1972)………………………….SPA-11
Immigration and Nationality Act §309(a)……………………………………SPA-12
N.Y. Domestic Relations Law §24(1)………………………………………..SPA-13

U.S. Departm ent of .Justice
Executive Office for T111migrat ion Review
Board ofImmigrat ion Appeals

Office of the Clerk
5107 l easburg Pike. Suite won

rolls Church. l'lrg/nia 2204 I
Saenz, Andrea A OHS/ICE Office of Chief Counsel - NYD

Brooklyn Defender Services 201 Varick, Rm. 1130
180 Livingston St., Suite 300 New York, NY 10014
Brooklyn, NY 11201
Name: JAEN, LEVY ALBERTO A 076-187-995
Date of this notice: 5/2/2017
Enclosed is a copy of the Bourd's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members :
Pauley, Roger
Userteam : Docket
SPA-001
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls cl~ch, Virginia 22041
File: A076 187 995 - New York, NY Date:
In re: LEVY ALBER TO JAEN MAY - 2 2017
IN REMOV AL PROCE EDING S
APPEA L
ON BEHAL F OF RESPO NDENT : Andrea A. Saenz, Esquire
ON BEHAL F OF DHS: Kamephis Perez

Assistant Chief Counsel
CHARG E:
Notice: Sec. 237(a)( l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -

In the United States in violation of law
Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] -

Convict ed of controlled substan ce violation
APPLIC ATION : Termina tion
The respond ent appeals the Immigra tion Judge's Decemb er 8, 2016, decision ordering
him
removed to Panama. The appeal will be dismissed.
We review for clear error the findings of fact, including the determination of credibili
ty,
made by the Immigration Judge. 8 C.F.R. § I 003.l(d)(3)(i). We review de novo all other
issues,
includin g whether the parties have met the relevant burden of proof and issues of
discretion.
8 C.F.R. § 1003 .1 (d)(3 )(ii).
The respond ent's sole contenti on on appeal is that he acquired United States citizens
hip at
the time of his birth by virtue of his relationship to the lawful spouse of his mother,
who was
a United States citizen at the time of his birth (Respon dent's Br. at 4-17). The respond
ent has
acknow ledged that he was born in Panama. A person born abroad who claims to be
a citizen
of the United States has the burden to establish such claims. See Matter of Rodriguez-Tejed
or,
23 I&NDe c. 153, 164 (BIA20 01) (citingM attero/L eyva, 16l&N Dec.18 8, 119(BI
A 1977));
Matter of Tijerina-Villareal, 13 I&N Dec 327 330 (BIA 1969).
We have carefully considered the respond ent's claim, and like the Inunigration Judge
who
presided over the respond ent's case, we conclude that the respondent did not demonstrate
that he
is a United States citizen (I.J. at 4-6). The governing law in this case is the law in effect
on the
date of the respond ent' s birth. 1 Former section 301(a)(7) of the Immigration and Nationa
lity Act
1
The respond ent was born in Panama on May 12, 1972.
SPA-002
A076 187 995
(redesignated in 1978 as section 301(g)) is the applicable law for transmitting citizenship to a
child born outside the geographical limits of the United States and its outlying possessions when
one parent is a United States citizen.2
The issue in this case arises from the fact that although the respondent's mother was married
to a United States citizen at the time of the respondent's birth, the respondent's mother's husband
is not the respondent's biological father. The respondent submitted a birth certificate which lists
the respondent as the "Child of' the biological father, not the "Child of" the respondent's
mother' s husband (Respondent's Motion, Tab Lat 23). We further note that the birth certificate
shows that respondent was given his biological father ' s surname. The respondent also submitted
a reissued birth certificate dated January 28, 1977, that lists the respondent as the "son of' the
respondent's mother's husband and states that the certification can only be used for scholastic
purposes (I.J. at 3~ Respondent's Motion, Lab M). The reissued birth certificate replaces the
respondent's biological father's surname with the respondent's mother's husband' s surname
(I.J. at 3 (noting that the respondent's mother's husband gave him his last name)).
The respondent argues that his mother's husband qualifies as his parent for purposes of
301(a)(7) because 30l(a)(7) does not require a blood relationship (Respondent's Brief at 5-6). In
support, he references two decisions from the Ninth Circuit. See Solis-Espinoza v. Gonzales,
401 F.3d 1090 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159 (9th Cir. 2000).
If the respondent's mother's husband was listed on his initial birth certificate and this case
arose in the Ninth Circuit, we would agree with the respondenfs argument. Inasmuch as those
facts are not present here, we are not so persuaded. This case arises in the jurisdiction of the
Second Circuit and we are required to apply Second Circuit law. Moreover, the Ninth Circuit's
reasoning does not distinguish between situations where the biological father is listed as the
parent on the birth certificate (as in this case) and situations where there is no evidence of any
non-biological connection between the biological father and the child (as in the case of Solis-
Espinoza v. Gonzales, supra). See id.
Former section 30l(a)(7) of the Act applies only to those who have acquired United States
citizenship at birth. Though the respondent submitted a reissued birth certificate, labeled for
"scholastic purposes," that cites his mother' s husband as his parent, the document was issued
several years after the respondent's birth, an_d, thus, is insufficient to establish a parental
relationship at birth. In regard to the declarations from family members stating that the
respondent's mother's husband raised the respondent, we agree with the Immigration Judge' s
determination that those documents do not meet the respondent's burden of establishing by a
preponderance of the evidence that his mother' s husband was his parent for 30l(a)(7) purposes
at birth. Thus, we conclude that the respondent did not demonstrate that he is a United States
2 The statute requires a showing that the United States citizen parent had been, prior to the
child ' s birth, physically present in the United States or its outlying possessions for a period
totaling 10 years, at least 5 of which were after attaining the age of 14. Former section 30 l(a)(7)
of the Act.
2
SPA-003
A076 187 995
citizen (I.J. at 6). See also Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967) (stating
that doubts should be resolved against the person claiming citizenship).
We note that the respondent has not contested that he is removable as charged and made no
applications for relief before the Immigration Judge. As this was the sole challenge to the
Im.migration Judge's decision, we deem all other arguments waived. Accordingly, the following
order will be entered.
ORDER: The appeal is dismissed.
SPA-004
UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARI CK STREET
NEW YORK, NEW YORK
File No.: A076-187-995
In the Matter of:
JAEN, Levy Alberto, IN REMOVAL PROCEEDINGS
The Respondent.
CHARGES: Section 237(a)(l)(B) of the Immigration and Nationality Act ("INA")

(Overstay)
INA § 237(a)(2)(B)(i) (Vio]ation of law relating to a controlled
substance)
APPLICATION: Motion to Terminate Proceedings
ON BEHALF OF THE RESPONDENT ON BEHALF OF DHS

Andrea Saenz, Esq. Caroline Clark, Esq.
Brooklyn Defender Services Assistant Chief Counsel
177 Livingston Street, 3rd Floor 201 Varick Street
Brooklyn, NY 11201 New York, NY 10014
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. PROCEDURAL HISTORY
Levy Alberto Jean ("the Respondent") is a native and citizen of Panama. (Exhibits
(4'Exs.") l; 2). He entered the United States ("U.S.") on May 8, 1988 on a B-2 nonimmigrant
visa with authorization to remain until November 8, 1988. Id. On December 10, 2008, he was
convicted of criminal possession of controlled substance in the fourth degree, to wit: cocaine, in
violation of New York Penal Law § 220.09(1). (Ex. 3). On September 22, 2014, he was
convicted of criminal possession of a controlled substance in the fourth degree, to wit: heroin, in
violation of NYPL § 220.09(1), and criminal possession of a firearm, in violation of NYPL §
265.0l(b)(l). (Ex. 4).
On April 15, 2015, the Department of Homeland Security ("DHS") served the
Respondent with a Notice to Appear ("NTA"), charging him with removability pursuant to INA
§ 237(a)(l)(B), as an alien who, after admission as a non.immigrant, remained in the U.S. for a
SPA-005
time longer than permitted, and INA § 237(a)(2)(B)(i), as an alien who was convicted of a
controlled substance offense. (Ex. I). On September 23, 2015, the Respondent appeared pro se
before a prior Immigration Judge ("IJ") and admitted factual allegations one, two, three, five, and
six contained in the NTA. The prior IJ sustained allegation four and the charges of removability.
The Respondent asserted a claim to derivative citizenship, and the prior IJ adjourned proceedings
for further investigation. On May 31 , 2016, the Respondent filed a motion to change venue to
this Court, which the prior IJ granted. See Order of the Immigration Judge, June 13, 2016.
The Respondent appeared before the Court with counsel, and on October 18, 2016, he
filed a motion to terminate proceedings, arguing that he is not removable because he acquired
citizenship at birth from his deceased stepfather. See Resp. Mt. On October 26, 2016, DHS filed
a brief in opposition to the motion. See DHS Opposition. As discussed in more detail below, the
Court finds that the Respondent has failed to demonstrate that he acquired U.S. citizenship,
denies his motion to terminate proceedings, and finds that the charges of removability have been
established by clear and convincing evidence. INA § 240(c)(3)(A); 8 C.F.R. §§ 1240.8(a),
1240. I0(c), (d).
II. LEGAL STANDARDS & ANALYSIS
A. Burden of Proof
An alien is subject to removal, but a U.S. citizen or national is not. INA§ 240(a)(l). A
person who was born abroad is prlma facie an alien and, to rebut that presumption, he bears the
burden of proof to establish by a preponderance of the evidence that he is a U.S. citizen or
national. See Matter of Romandia-Herreros, 11 l&N Dec. 772, 774 (BIA 1966) (citing Matter of
A-M-, 7 I&N Dec. 332, 336 (BIA 1956)); Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330
(BIA 1969); 8 C.F.R. § 34 l .c(2).
The Respondent has conceded that he was born in Panama. See (Exs. I ; 2; 6; 7). As
such, the Respondent is presumed to be an alien and bears the burden of demonstrating by a
preponderance of the evidence that he is a U.S. citizen. Tijerina-Villaneal, 13 I&N Dec. at 330.
For the reasons explained below, the Court concludes that he has failed to meet his burden of
proof
B. Acquisition of U.S. Citizenship at Birth
Generally, a child born outside the U.S. to parents, one of whom is a citizen of the U.S.,
may acquire U.S. citizenship at birth. INA§ 30 l(c)-(e), (g)-(h); 8 U.S.C. § 140l(c)-(e), (g)-(h).
Under former INA§ 301(a)(7), which was in effect at the time of the Respondent's birth on May
12, 1972, a person acquires citizenship if one of his parents is a U.S.C citizen "who, prior to the
birth of such person, was physically present in the [U.S.] or its outlying possessions for a period
or periods totaling not less than ten years, at least five of which were after attaining the age of
fourteen. " INA§ 301(a)(7).
SPA-006
After careful review of the evidence, the Court finds that the Respondent has not
demonstrated that his stepfather, Jorge Boreland, was in fact his "parent" under fonner INA §
301. Because the issue of parentage is a threshold issue, the Court need not address whether the
Respondent has established the remaining requirements under§ 30l(a)(7).
J. The Respondent's Stepfather, Jorge Boreland ("Mr. Boreland''
As a preliminary matter, the Couit will first discuss the documentary evidence submitted
by the Respondent and DHS regarding the Respondent's father and stepfather.
a. The Respondent's birth documents
The Respondent submitted a certified translation of his original birth certificate, showing
he was born on May 12, 1972 in Panama. (Resp. Mt., Tab Lat 23). "Liberato Jaen Solis" is
identified as the Respondent's birth father. Id. DHS submitted copies of the Respondent's birth
certificate (with translation) that he had allegedly filed with U.S. Citizenship and Immigration
Services ("USCIS"), which also list HLiberato Jaen Solis" as his father. (DHS' Opposition, Tabs
A & B). It is undisputed that the Respondent's mother is Leticia Rogers Gutierrez or Leticia
Rogers Boreland.
The Respondent also submitted a reissued birth certificate from Panama dated January
28, 1977, which lists him as the son of"Jorge Boreland" and HLeticia Rogers." (Resp. Mt., Tab
M). This birth certificate also states that it ''can only be used for scholastic purposes, in
conformity with the Cabinet Decree No. 304 of the Third (3) of September of 1970. '' Id.
b. Documents regarding the Respondent's mother and Mr.

Boreland
The Respondent submitted a Marriage Certificate from Panama showing that "Leticia
Rogers Gutierrez" married ''Jorge Calderwood Boreland Frazier" on August 23, 1952. (Resp.
Mt. , Tab L at 21-22). The Respondent contends that they never divorced, and he submitted
copies of his mother's permanent resident card, New York State Benefit card, and health care
card, which show that she continues to use "Boreland" as her last name. (Resp. Mt., Tab Q). He
also submitted a letter from 1956 indicating Mr. Boreland's attempt to petition for "Leticia
Clifford de Boreland," his wife, to come to the U.S. (Resp. Mt., Tab G).
c. Documents regarding the Respondent and Mr. Boreland
The Respondent submitted a declaration from his sister, Liza Boreland, who states that
although her biological father, Jorge Boreland, is not the Respondent's biological father, Mr.
Boreland "decided to raise [the Respondent] as his own son and gave him his last name." (Resp.
Mt., Tab B at ~ 9). The Respondent also submitted a declaration from his brother, Dennis
Boreland, who affirms that when the Respondent was born, "[the Respondent's] biological father
was not around and my father, [Mr. Boreland], accepted him as his own son." (Resp. Mt., Tab D
at ,r 6).
3
SPA-007
2. Whether Mr. Boreland is the Respondent's legal parent
Despite the numerous documents submitted, the Court finds that the Respondent has not
established that Mr. Boreland was his legal father for purposes of acquiring U.S. citizenship.
First, it is undisputed that the Respondent's biological father was Liberato Jaen Solis. Although
his biological father never manied his mother and was not a part of his life, the Respondent was
still the legitimate child of his father under Panamanian law. See Matter of Sincl_air, 13 I&N
Dec. 613, 614 (BIA 1970) (noting that the 1946 Panamanian Constitution abolished the
distinction between children born in and out of wedlock). Furthermore, the Respondent's
amended birth certificate does not establish that Mr. Boreland was his legal parent. Rather, this
certificate was issued five years after his birth and states that it is for "scholastic purposes;, only.
(Resp. Mt., Tab M). Although two of the Respondent's siblings contend that Mr. Boreland
accepted the Respondent "as his own son," this is insufficient to conclude that Mr. Boreland was
his parent as a matter of law. See, e.g., Fedorenko v. U.S., 449 U.S. 490,506 (1981) ("our cases
have also recognized that there must be strict compliance with all the congressionally imposed
prerequisites to the acquisition of citizenship''); INS v. Pangilinan, 486 U.S. 875, 885 (1988)
("fundamentally, however, the power to make someone a citizen of the United States .. .has been
given [to courts] as a specific function to be performed in strict compliance with the tenns of an
authorizing statute").
The Respondent argues that the Court should follow precedent arising out of the Ninth
Circuit Court of Appeals to conclude that Mr. Boreland was his legal parent. In Scales v. INS,
the petitioner was born outside the U.S. to a U.S. citizen father and a noncitizen mother during
their marriage. 232 F.3d 1159, 1162 (9th Cir. 2000). Although the father admitted that he was
not the petitioner's biological parent, the Ninth Circuit found that there was Hno requirement of a
blood relationship between [p]etitioner and his citizen father, as there is for an illegitimate
child." Id. at 1166. In reaching this conclusion, the court noted the ''uncontroverted'' record that
the petitioner was born to his parents during their marriage, and that under the relevant state law,
the father was presumed to be the petitioner's natural father. Id. at 1162. The court further
acknowledged that even if this presumption could be overcome, the petitioner still acquired
citizenship at birth because he was the ''legitimate'' child of his married parents; it noted,
however, that a ''blood relationship'' was still necessary for an "illegitimate child." Id: at 1166.
The Ninth Circuit applied its conclusion in Scales to a similar situation in Solis-Espinoza
v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). In that case, the petitioner was born abroad to
noncitizen parents, but he was raised by his noncitizen father and his father,s U.S. citizen wife.
Id. at 1091-92. Noting that the petitioner was undisputedly a ''legitimate,, child "from the time of
his birth" under California law and that his mother was listed on his birth certificate even though
she was not his biological parent, the court concluded that the petitioner acquired citizenship
under former INA§ 301(a)(7). Id. at 1094.
Notwithstanding the Ninth Circuit's conclusion that a blood relationship is not required to
acquire citizenship at birth, the Cou1t finds that the Respondent has not established by a
preponderance of the evidence that he is a U.S. citizen. Tijerina-Villarreal, 13 I&N Dec. at 330.
First, there are several distinctions between the Respondent and the petitioners in Scales and
Solis-Es2inoza. In both of those cases, the petitioners were raised from birth by their citizen and
4
SPA-008
noncitizen parents. Although the Respondent correctly highlights that the Scales decision made
no mention of the petitioner's birth certificate, the court concluded that the petitioner's biological
father was unknown, that it was uncontroverted that the petitioner was the legitimate son of his
citizen father, and that the petitioner was raised by his manied parents in the U.S. Here,
however, the evidence shows that the identity of Respondent's biological father is known, and
that the Respondent was not raised by his stepfather at birth. Rather, the Respondent is the
legitimate son of Liberato Jaen Solis,~ Sinclair, 13I&N Dec. at 614, and, more significantly,
he was raised by his grandparents in Panama. See (Resp. Mt., Tab Bat~~ 9-10) (declaration of
Liza Boreland, stating that H[s]hortly after [the Respondent's] birth, my parents left [him] with
our grandparents, my siblings, and me, and returned to the United States ... shortly after [l 979]
we moved to the United States. Everyone came with us except [the Respondent]"); (Resp. Mt.,
Tab C at tj[ 4) (declaration of Vivian Buccino, stating that the Respondent's "grandparents in
Panama raised my siblings and me for most of our childhood. Our parents lived in the United
States during this time."); see also (Ex. 2) (I-94 indicating that the Respondent entered the U.S.
on May 8, 1988, at age fifteen).
In both Scales and Solis-Espinoza, the court emphasized the undisputed parent-child
relationship between the petitioner and the non-biological parent, and it found there was !!no
good reason to treat" them otherwise. Solis-Espinoza, 401 F.3ed at 1094. Here, however, the
only evidence confoming the Respondent's relationship with Mr. Boreland include his amended
birth certificate, which was issued five years after his birth and states that its sole use is for
"scholastic purposes," (Resp. Mt., Tab M), and the statements from two of the Respondent's
half-siblings that Mr. Boreland raised him as his own son. See (Resp. Mt., Tabs B & D). While
the Court does not question the validjty of the marriage between Mr. Boreland and the
Respondent> s mother, the evidence presented is insufficient to conclude that the Respondent was
the legitimate son of Mr. Boreland under New York state law. See (Resp. Mt., Tab V) (New
York law regarding maniage and child legitimacy). Accordingly, because the Respondent was
born to two noncitizen parents, neither of whom naturalized, he has not acquired citizenship
under former INA§ 30l(a).
Moreover, even if the evidence supported a different conclusion regarding the

Respondent's relationship with his stepfather, this Court is bound by the Second Circuit and the
Board of Immigration Appeals ("BIA"), neither of which has ruled on the present issue. Rather,
the Second Circuit has adopted a strict reading of our citizenship laws. See, e.g.• Hizam v.
Kerry, 747 F.3d 102, 111 (2d Cir. 2014) (concluding that, despite the vast equities favoring the
petitioner, "[w]ell-settled case law bars a court from exercising its equity powers to naturalize
citizens," even when it would have achieved "a just result here"). In addition, in numerous
unpublished decisions, the BIA has declined to extend Scales or Solis-Espinoza to similar
situations. See, e.g. In re: Rodolfo Lastimos~ 2013 WL 3899763 (BIA 2013) (concluding that
former INA § 301 (a)(7) 1'applies only to those who have acquired United States citizenship at
birth, and does not provide for the acquisition of citizenship after through birth adoption, through
the establishment of a stepparent-stepchild relationship, or through other means"); In re: Torres-
Valdez, 2005 WL 3802143 (BIA 2005) (finding the evidence ''inadequate'' to rebut the
presumption of alienage, as the respondent's birth certificate "gives 'Mexican' as the claimed
nationality for both of his parents at that time," and noting that he "was admitted in 1974 as an
immigrant," but made no claim to citizenship until he was "in immigration detention two
5
SPA-009
decades later"); In re: J-C-C-P-, 2016 WL 4619949 (AAO 2016) (requiring that the applicant,
who claimed he acquired citizenship from his stepfather under§ 301 (a)(7), "first establish that he
was born out of wedlock to a U.S. citizen father," and finding that ~'legitimation of a child by a
U.S. citizen's acknowledgement of the child and marriage to the mother does not result in the
bestowal of citizenship upon the child if the natural relation of parent and child does not exist
between the acknowledging citizen and the child"),
Thus, because the Respondent has failed to establish that his stepfather, Jorge Boreland,
was his parent at the time of his birth, he has failed to show that he acquired citizenship under
former INA§ 301(a)(7). The Court therefore declines to address whether he has met his burden
of proof regarding whether his stepfather was a U.S . citizen and whether he met the physical
presence requirements. rNA § 307(a)(7). Furthermore, as there are no applications for relief, the
Court orders the Respondent removed from the U.S.
Accordingly, after a careful review of the record, the following Order is entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's motion for tennination of proceedings is

DENIED;
IT IS FURTHER ORDERED that the Respondent be removed from the U.S. to Panama based
on the charges of removability set forth in the NTA.
Date
Immi
6
SPA-010
Immigration and Nationality Act §301(a)(7) (1972), 8 U.S.C. §1401(a)(7) (1972)
NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
Sec. 301. (a) The following shall be nationals and citizens of the United States at
birth:
[….]
(7) a person born outside the geographical limits of the United States and its
outlying possessions of parents one of whom is an alien, and the other a citizen
of the United States who, prior to the birth of such person, was physically
present in the United States or its outlying possessions for a period or periods
totaling not less than ten years, at least five of which were after attaining the
age of fourteen years: Provided, That any periods of honorable service in the
Armed Forces of the United States by such citizen parent may be included in
computing the physical presence requirements of this paragraph.
SPA-011
Immigration and Nationality Act §309(a), 8 U.S.C. §1409(a)
Sec. 309. Children born out of wedlock
a) The provisions of paragraphs (c), (d), (e), and (g)1 of section 301 of this title, and
of paragraph (2) of section 308 of this title, shall apply as of the date of birth to a
person born out of wedlock if—
(1) a blood relationship between the person and the father is established by
clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person's
birth,
(3) the father (unless deceased) has agreed in writing to provide financial
support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years—

(A) the person is legitimated under the law of the person's residence or
domicile,
(B) the father acknowledges paternity of the person in writing under
oath, or
(C) the paternity of the person is established by adjudication of a
competent court.
1
Former INA §301(a)(7), the statute that pertains to Mr. Jaen, has since been
redesignated as INA §301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678, 1686
(2017).
SPA-012
N.Y. Domestic Relations Law §24(1)
Sec. 24. Effect of marriage on legitimacy of children
1. A child heretofore or hereafter born of parents who prior or subsequent to the

birth of such child shall have entered into a civil or religious marriage, or shall
have consummated a common-law marriage where such marriage is recognized
as valid, in the manner authorized by the law of the place where such marriage
takes place, is the legitimate child of both birth parents notwithstanding that
such marriage is void or voidable or has been or shall hereafter be annulled or
judicially declared void.
SPA-013

Jaen V Sessions Opening Brief As Filed

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Case 17-1512, Document 64, 09/18/2017, 2127423, Page1 of 46

JEFFERSON B. SESSIONS III, Attorney General of the United States,

ON PETITION FOR REVIEW OF A DECISION OF

Andrea A. Saenz Ian Samuel

JURISDICTIONAL STATEMENT ........................................................................ 1

ISSUES PRESENTED .............................................................................................. 2

STATEMENT OF THE CASE ............................................................................... 2

A. Jaen’s Family and Birth ................................................................................... 2

SUMMARY OF ARGUMENT ................................................................................ 6

A. The Text of Former §301........................................................................ 10

1. Jorge Boreland was Jaen’s parent under the common-law meaning

C. The Only Court of Appeals to Address This Question Has Concluded

SPECIAL APPENDIX ..................................................................................... SPA-1

Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) .............................................................. 17

Statutes & Regulations

8 C.F.R. §1003.1(b)(3) ............................................................................................................ 1

petition under 8 U.S.C. §1252(a)(1), which authorizes review of final orders of

through petition for review). In particular, this petition presents a question of

statutory interpretation: what it means to be “born … of parents,” one of whom is a

encompasses, inter alia, questions of statutory interpretation.”).

decision of the BIA. 8 U.S.C. § 1252(b)(1). ECF No. 1.

former 8 U.S.C. §1401(a)(7) (1972), thus rendering Jaen a citizen at birth?

STATEMENT OF THE CASE

A. Jaen’s Family and Birth

Shortly after becoming a permanent resident, Jorge successfully petitioned for

of the 1957 musical “Jamaica”). CAR 340–42.

the rest of them. See CAR at 328-9.

citizen children. See CAR 233-36, 359, 361.

B. Jaen’s Removal Proceedings

naturalization certificate confirming this fact as part of a production under the

In 2008, Jaen was convicted of criminal possession of a controlled substance in

INA § 237(a)(1)(B) and 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(1)(B) and 1227(a)(2)(B)(i).

Court in New York City. CAR 147.

In October 2016, now represented by counsel, Jaen filed a motion to terminate

from the Ninth Circuit, finding acquisition of citizenship in circumstances nearly

Gonzales, 401 F.3d 1090 (9th Cir. 2005).

On December 8, 2016, the Immigration Judge issued a written order denying

the record on the circumstances of Jaen’s childhood.

C. The BIA’s Decision

parent-child relationship with Boreland, especially in the absence of any evidentiary

hearing, were in error. CAR at 6-25.

Jaen’s claim. The agency’s reasoning, in full, was a single paragraph:

stay of removal on August 8, 2017, ECF No. 52.

U.S.C. §1401(a)(7) (1972). Jaen satisfies those requirements.

of a blood relationship, which other provisions of the INA relating to citizenship at

York—not back to the agency. See 8 U.S.C. §1252 (b)(5)(B).

where an individual presents a mere “preponderance of credible evidence sufficient to

Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969).

Further, when a reviewing court is considering agency action, “the propriety of

the court is powerless to affirm the administrative action by substituting what it

invoked by the agency.

Court should set it aside.

I. Jorge Boreland is Levy Jaen’s “Parent”

by his own State as Jaen’s parent the day he was born.

no mention of a blood relationship—which other provisions of the INA do. See 8

The only court of appeals to consider whether a person in Boreland’s position

Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).

A. The Text of Former §301

“When interpreting a statutory provision, we begin with the language of the

Immigration and Nationality Act contains an extensive definitional section, it contains

no definition of the word at issue here—“parent.” See 8 U.S.C. §1101(c)(2) (providing

“birth parent” is used to describe a strictly biological relationship. Id.)

child is by definition that child’s parent.