CHENEAU v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-18No. No. 15-70636

Summary · law.co

Holding. The petition for review is granted, the Board of Immigration Appeals' decision is vacated, and the case is remanded with instructions to terminate the removal proceedings.

Monssef Cheneau sought court review of a Board of Immigration Appeals decision denying him derivative citizenship and ordering his removal. The Ninth Circuit had previously rejected Cheneau's claim under the derivative citizenship statute because of a binding precedent requiring lawful permanent resident status. However, an en banc panel of the Ninth Circuit intervened and overruled that precedent, establishing that derivative citizenship under the relevant statute does not strictly require prior lawful permanent resident status, only an objective official manifestation of permanent residence.

With this new legal standard in place, the court determined that Cheneau satisfied the requirements for derivative citizenship when he applied for adjustment of status to lawful permanent resident in 2000. The government conceded during oral argument that if the court agreed with Cheneau's interpretation of the statute, no further factual findings would be needed. Accordingly, the court concluded that Cheneau is a United States citizen.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether derivative citizenship under 8 U.S.C. § 1432(a)(5) requires lawful permanent resident status
Whether the statutory phrase 'or thereafter begins to reside permanently in the United States' permits derivative citizenship based on objective manifestation of permanent residence alone
Whether petitioner obtained derivative citizenship upon applying for adjustment of status

Procedural posture

Cheneau petitioned for judicial review of a Board of Immigration Appeals decision denying derivative citizenship and ordering removal, which had been affirmed in a prior panel decision but was subsequently reconsidered by an en banc panel of the Ninth Circuit.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Monssef Cheneau petitions this court for review of the determination by the Board of Immigration Appeals (“BIA”) that he does not qualify for derivative citizenship and is removable. We have jurisdiction pursuant to 8 U.S.C. § 1252(b)(5)(A) and grant the petition.

We previously held that Cheneau did not qualify for derivative citizenship under the old version of the derivative citizenship statute, 8 U.S.C. § 1432(a), which gave derivative citizenship to “[a] child born outside of the United States of alien parents” who (1) was “residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent” or (2) “thereafter [began] to reside permanently in the United States while under the age of eighteen years.” 8 U.S.C. § 1432(a)(5); see Cheneau v. Barr, 971 F.3d 965, 968–70 (9th Cir. 2020) (per curiam), revd en banc, 997 F.3d 916 (9th Cir. May 13, 2021). According to Cheneau, he satisfied the requirements of the second pathway when he began to reside permanently in the United States prior to turning eighteen, despite not having lawful permanent resident status. Id. at 969–70. In rejecting that argument, we were constrained by this courts holding in Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062–63 (9th Cir. 2008), overruled by Cheneau, 997 F.3d at ––––, 2021 WL 1916947, which held that both pathways of § 1432(a)(5) required lawful permanent resident status. Cheneau, 971 F.3d at 969–70.

An en banc panel of this court has now overruled Romero-Ruiz and held “that the phrase ‘or thereafter begins to reside permanently in the United States,’ 8 U.S.C. § 1432(a)(5), does not require that the child have necessarily been granted lawful permanent residency, although the child must have demonstrated an objective official manifestation of permanent residence.” Cheneau v. Garland, 997 F.3d 916, 918 (9th Cir. May 13, 2021). In its briefing, the government stated that “no genuine issue of material fact exists concerning [Cheneaus] citizenship claim.” And at oral argument, the government conceded that “if [the court] reached [Cheneaus] statutory construction argument, and agreed with [Cheneau], ․ there would be no need” to remand for “any factual findings regarding [Cheneaus] derivative citizenship.” We thus hold that Cheneau obtained derivative citizenship under 8 U.S.C. § 1432(a)(5) in 2000 when he applied for adjustment of status to lawful permanent resident. See Cheneau, 971 F.3d at 969.

As a result, Cheneau is a citizen of the United States. Accordingly, we GRANT the petition for review, VACATE the BIAs decision, and REMAND with instructions to terminate Cheneaus removal proceedings.