Khalid v. Sessions

Mohammed Hassan Faizan Khalid, Petitionerv.Jefferson B. Sessions III, United States Attorney General, Respondent.^* Petitioner Mohammed Hassan Faizan Khalid petitions for review of a September 14, 2016, decision of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) order of removal. The Department of Homeland Security instituted removal proceedings against Khalid after he was convicted of conspiring to provide material support for terrorism in violation of 18 U.S.C. §2339A. Khalid moved to terminate his removal proceedings, contending that he derivatively acquired citizenship from his U.S. citizen father. At the time Khalid’s father became a U.S. citizen, Khalid had recently entered federal pretrial juvenile detention for terrorism-related charges, and remained there for the short time until his eighteenth birthday. As a result, the IJ and BIA concluded that Khalid was not in the “physical custody” of his U.S. citizen parent before his eighteenth birthday, as required by the applicable derivative naturalization statute, 8 U.S.C. §1431(a). We hold that the short, temporary physical separation caused by Khalid’s time in federal pretrial juvenile detention did not strip Khalid’s father of his “physical custody” of Khalid as that term is used in 8 U.S.C. §1431(a), and that consequently, Khalid is a U.S. citizen. Accordingly, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND with instructions to terminate Khalid’s removal proceedings.Judge Jacobs, Circuit Judge, with whom Judge Hall joins, concurs in a separate opinion.Christopher Droney, C.J.Under the Immigration and Nationality Act (INA), a child under the age of eighteen who is a legal permanent resident (LPR) of the United States acquires citizenship when that child’s parent becomes a U.S. citizen if the child is residing in the United States in the “legal and physical custody” of the citizen parent. 8 U.S.C. §1431(a). In this petition, we are asked to construe the term “physical custody” in 8 U.S.C. §1431(a) as it applies to the unique situation presented here.In July 2011, the FBI arrested Petitioner Mohammed Hassan Faizan Khalid for allegedly conspiring to provide material support for terrorism in violation of 18 U.S.C. §2339A. At the time, Khalid was a minor and a legal permanent resident of the United States. The United States District Court for the Eastern District of Pennsylvania placed Khalid in pretrial juvenile detention following his arrest. Shortly thereafter, in August 2011, Khalid’s father became a U.S. citizen, while Khalid was still under the age of eighteen. A month later, Khalid turned eighteen while still in federal pretrial juvenile detention. During Khalid’s subsequent removal proceedings, the IJ and the BIA concluded that Khalid’s detention had terminated his father’s “physical custody” over Khalid, and therefore Khalid was not eligible to acquire derivative citizenship under 8 U.S.C. §1431(a).We disagree and hold that Khalid’s temporary physical separation from his father while in federal pretrial juvenile detention did not terminate Khalid’s father’s “physical custody” of Khalid. We construe the term “physical custody” in 8 U.S.C. §1431 by first looking to state law definitions of that term. Those definitions provide some direction and indicate that a parent’s physical custody of a child does not cease due to a child’s brief, temporary separation from a parent. Second, the statutory context and history of the derivative citizenship statute indicate that the “physical custody” requirement ensures that the LPR child has a strong connection to the naturalizing parent and to the United States at the time the child becomes eligible for derivative citizenship. Khalid had those connections. Third, the applicable canons of statutory interpretation also favor construing the term “physical custody” so that such custody does not terminate upon a brief, temporary separation from a parent. Finally, the distinctive nature of federal pretrial juvenile detention — which encourages continued family involvement with the child during such detention — further supports the conclusion that Khalid’s father retained “physical custody” over Khalid for the purposes of 8 U.S.C. §1431(a). As a result, Khalid is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him.BACKGROUNDPetitioner Mohammed Hassan Faizan Khalid entered the United States with his family as an LPR in 2007. He was born in the United Arab Emirates, but as the child of two Pakistani parents, he was a Pakistani citizen. From at least the summer of 2009, when he was 15 years old, until his arrest in July 2011 at age 17, Khalid used the internet to attempt to assist extremists in the United States and abroad. According to the government, Khalid helped with recruitment efforts by translating jihadist videos from Urdu into English, and then posting those videos online. In addition, Khalid assisted a codefendant who aspired to commit jihad in Europe by attempting to fundraise for that codefendant and by concealing evidence from the FBI.Federal agents arrested Khalid on July 6, 2011. At the time he was arrested, Khalid was seventeen years old, had just graduated from high school, and was living at home with his parents in suburban Baltimore. Following his arrest, Khalid was detained at the Berks County Youth Correctional Center (Berks) in Berks County, Pennsylvania. Shortly thereafter, a federal district judge ordered Khalid’s continuing detention at that facility pursuant to 18 U.S.C. §§5034-5035, which governs federal pretrial juvenile detention.A little over a month after his arrest, on August 17, 2011, Khalid’s father became a U.S. citizen. At the time Khalid’s father naturalized, Khalid was still detained at Berks. The government transferred Khalid to an adult facility that October, after Khalid turned eighteen years old.Khalid cooperated extensively with the government following his arrest. He met with federal investigators over twenty times and testified in grand jury proceedings for two investigations. The government acknowledged that “Khalid’s assistance advanced multiple national security investigations in important ways.” AR 538.¹ Khalid pleaded guilty to violating 18 U.S.C. §2339A, but because of his cooperation, the government requested a downward departure from Khalid’s recommended Guidelines sentence of fifteen years’ imprisonment. The district court sentenced Khalid to five years’ imprisonment, which he has served.²In late 2015, after Khalid served his sentence, the government transferred him to the custody of Immigration and Customs Enforcement, and the DHS commenced removal proceedings against Khalid based upon his conviction. Khalid moved to terminate the removal proceedings on the ground that he is a U.S. citizen by virtue of his father’s naturalization, see 8 U.S.C. §1431(a), and, in the alternative, sought deferral of removal under the Convention Against Torture, see 8 C.F.R. §1208.17(a).³ The IJ denied the motion to terminate in April 2016, concluding that Khalid was not in his father’s “physical custody” at the time his father naturalized. In September 2016, the BIA affirmed the IJ’s decision, holding that a “child must reside with the citizen parent to satisfy the ‘physical custody’ requirement of [8 U.S.C. §1431(a)(3)].” AR 6. Khalid now petitions for review of the BIA’s decision, arguing that DHS may not remove him because he is a U.S. citizen.⁴DISCUSSIONI. Jurisdiction and Standard of ReviewKhalid presents one question for review: whether he was in the “physical custody” of his father under 8 U.S.C. §1431(a) at the time his father naturalized. That issue is a question of law that we have jurisdiction to review. 8 U.S.C. §1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-28 (2d Cir. 2006). In addition, we have jurisdiction pursuant to 8 U.S.C. §1252(b)(5)(A) because Khalid claims that he is a United States citizen and no dispute of fact prevents our resolution of that question. We review de novo the BIA’s interpretation of a citizenship statute. See Jaen v. Sessions, 899 F.3d 182, 18586 n.2 (2d Cir. 2018).II. The Text, Context, and Statutory History of 8 U.S.C. §1431(a)To determine whether Khalid satisfies the “physical custody” requirement in this context, we first look to the text of the statute. See, e.g., Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 739 (2017). If the statute is ambiguous, then “we may resort to canons of statutory interpretation to resolve the ambiguity.” Tanvir v. Tanzin, 894 F.3d 449, 459 (2d Cir. 2018). We determine whether a statute is ambiguous “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Here, we begin that inquiry by first examining the text of the statute itself, and, concluding that the term “physical custody” is not entirely clear, we then turn to the broader statutory context and its history.a. “Physical Custody” and State Law GuidanceUnder 8 U.S.C. §1431, a child may derive U.S. citizenship from a parent if (1) one parent is a citizen, (2) the child is “under the age of eighteen years,” and (3) “[t]he child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” 8 U.S.C. §1431(a).⁵ Neither party here disputes that the statute uses the term “physical custody” in the family law sense of the term.⁶ Nevertheless, the government suggests that we should only interpret this term with reference to federal law and BIA precedents interpreting terms other than “physical custody.” We agree with the government that “naturalization laws must ‘be construed according to a federal, rather than state, standard.’” Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004) (quoting Nehme v. INS, 252 F.3d 415, 422-23 (5th Cir. 2001)). However, “[i]t is [also] a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.” Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267, 287 (2d Cir. 2015) (quoting Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014)).In this case, that “cardinal rule” compels us to examine state law definitions of “physical custody” to help construe that term and the “cluster of ideas” attached to it. Id. Family law, after all, is an area of law that federal courts and Congress leave almost exclusively to state law and state courts. See, e.g., Reno v. Flores, 507 U.S. 292, 310 (1993) (noting that states have “special proficiency in the field of domestic relations, including child custody” (internal quotation marks omitted)); Ankenbrandt v. Richards, 504 U.S. 689, 701-04 (1992) (discussing domestic relations exception to federal diversity jurisdiction for cases involving divorce, alimony, and child custody decrees). This approach to statutory interpretation of such a term is wellgrounded in our precedent and that of the Supreme Court. For example, we have looked to state law definitions to define the term “legal custody” in the prior version of the derivative citizenship statute at issue in this case. See Garcia v. USICE (Dep’t of Homeland Sec.), 669 F.3d 91, 95 (2d Cir. 2011). Indeed, we observed in Garcia that “we often look to state law for a rule of decision where there is no extant body of federal common law in the area of law implicated by the statute.” Id. (alterations and internal quotation marks omitted); see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1989) (“That we are dealing with a uniform federal rather than a state definition does not, of course, prevent us from drawing on general statelaw principles to determine the ordinary meaning of the words used.” (internal quotation marks omitted)).Consistent with these principles, we turn to state law definitions of “physical custody” in the family law context to help us understand how Congress intended to use that term in 8 U.S.C. §1431.The parties disagree about the guidance that state law offers. The government, consistent with the BIA, contends that a child must be “actually resid[ing]” with the citizen parent at the exact time of the parent’s naturalization or before the child’s eighteenth birthday to satisfy this requirement. Resp’t Br. 19-20. In contrast, Khalid argues that “ physical custody” describes only the “legal relationship between parents and minor” children. Pet’r Br. 10. Both arguments find some support in state law, and as a result, we do not find state law conclusive in defining that term.State family law definitions of the term “physical custody” are often at odds with the government’s assertion that a child must be “actually resid[ing]” with a parent for the child to be in that parent’s “ physical custody.” For example, physical custody can be split between parents, and two parents can share and retain “physical custody” even if the child does not actually reside in any one parent’s home fulltime. See, e.g., Loran v. Loran, 2015 WY 24, 17 n.3, 343 P.3d 400, 404 n.3 (Wyo. 2015) (listing cases addressing shared physical custody in Wyoming); Jarvis v. Jarvis, 1998 ND 163,