Andrea A.

Saenz DETAINED
Brooklyn Defender Services
180 Livingston St., Suite 300
Brooklyn, NY 11201
(718) 254-0700 ext. 434

Ian Samuel
Harvard Law School
1525 Massachusetts Avenue
Cambridge, MA 02138
(617) 495-9097

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS

___________________________________________
)
In the Matter of: )
)
Levy JAEN ) File No: A 076-187-995
)
In removal proceedings )
___________________________________________ )

RESPONDENTS BRIEF ON APPEAL AND IN OPPOSITION

TO THE DEPARTMENT OF HOMELAND SECURITYS
MOTION FOR SUMMARY AFFIRMANCE
 TABLE OF CONTENTS

Introduction....1

Facts2

Standard of Review.3

Argument

A. Jorge Boreland is Levy Jaens Parent.4

1. The Text of INA 301..5
2. The Statutory Context of 301 Confirms That No Blood Relationship is Required
for Parenthood..6
3. Judicial Interpretations of 301 Confirm That No Biological Relationship is
Required7
4. The Governments Argument That Mr. Jaen Was Not Jorge Borelands Child Is
Both Mistaken and Irrelevant...11
5. Events After Mr. Jaens Birth Are Irrelevant to the Statutory Question of Whether
Jorge Boreland is His Parent12
6. The Question of Legitimation Under Panamanian Law Is Irrelevant....14

B. Jaen Satisfies Both of the Other Requirements for Acquired Citizenship15

C. In the Alternative, The Board Should Conclude that Jorge Boreland is Jaens Parent
and Remand for a Determination on Jorges Citizenship and Residency.16

Conclusion.17
 Introduction

Levy Jaen is a citizen of the United States, and has been since the day he was born. That is

because his father, Jorge Boreland, was a naturalized citizen who satisfied all of the usual

requirements (such as length of residency) for a child to inherit citizenship at birth. Though Mr. Jaen

and Boreland have no biological relationship, Boreland was married to Mr. Jaens mother when he

was bornthus making him, under the law of New York (where Boreland lived), Mr. Jaens legal

parent. The only court of appeals to address whether a child in this situation is a citizen at birth has

held that the answer is yes. See Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000). The Board should

do the same.

The government contends (and the court below agreed) that because Jorge Boreland does

not appear on Mr. Jaens original Panamanian birth certificate, and because the identity of Mr. Jaens

biological father is known, Jorge Boreland is not Mr. Jaens parent. That is mistaken. One of the

oldest and best-respected rules of American family law is that when two people are married and one

of them has a baby, they are both the legal and legitimate parents of that babya status that has

nothing to do with a birth certificate. See Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989)

(plurality opinion by Scalia, J.); Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d 845 (2014) (New Yorks

public policy strongly favors the legitimacy of children, and that 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

law). Moreover, there is no reason that knowing the identity of the non-marital biological parent

should be any different than when the existence of that parent is conclusively known, as it was in

Scales and other cases.

Because nothing in the acquired citizenship statute requires a blood relationship between a

citizen parent and an acquired-citizen child, and because a contrary result would create disuniformity
with the Ninth Circuit, the order below should be vacated and Mr. Jaens removal proceedings

should be terminated.

Facts

A. Jorge and Leticia Borelands Marriage, and Levy Jaens Birth During That Marriage

Levy Jaens parents, Jorge and Leticia Rogers Boreland, were married in 1952, and remained

married until Jorges death. Jorge was born in the Panama Canal Zone in 1927, Exh. G,1 moved to

the United States in the 1950s, and became a lawful permanent resident by 1956. Exh. I, G. Shortly

after his arrival in the United States, Jorge successfully petitioned for the entry of Leticia, Exh. G,

and lived in New York, where Jorge worked as a singer (including on the cast of the 1957 Broadway

musical, Jamaica). Exh. H. In 1961, Jorge became a naturalized United States citizen, Exh. I

(passport showing a petition date of 1961),2 and lived in the United States continuously until the late

1970s, making only brief trips abroad to see his family or for his entertainment career. Exhs. C-D.

In May 1972, following a brief affair between Leticia and a man named Liberato Jaen Solis,

she gave birth to the respondent, Levy Jaen, while abroad in Panama. Exh. L. During this affair, she

remained married to Jorge, and the two reconciled soon after Mr. Jaens birth. Exh. C. Jorge raised

Levy as his son and accepted him as his son, even giving him his last name. Exh. D. A birth

certificate issued to Levy in 1977 lists Jorge Boreland as his father, Leticia Boreland Rogers as his

mother, and gives Levys full name as Levy Boreland Rogers. Exh. M.

Jaen has been living in the United States continuously for nearly thirty years, after spending

his childhood with his grandparents in Panama. IJ Decision 1.

1
All references to exhibits refer to those attached to Mr. Jaens Motion to Terminate before the immigration judge.
2
Counsel for the government has confirmed this date in writing. In addition, while this appeal was pending, the
government produced Jorge Borelands 1961 naturalization certificate in response to a FOIA request; counsel are
prepared to introduce that evidence on remand if necessary.

2
 B. Proceedings Before the Immigration Judge

In 2008, Mr. Jaen was convicted of fourth-degree possession of a controlled substance under

New York Penal Law 220.09(1), and in 2014, he was convicted of criminal possession of a firearm

under New York Penal Law 265.01(b)(1). IJ Decision 1. In April 2015, the Department of

Homeland Security served Mr. Jaen with a Notice to Appear, charging him with removability

pursuant to INA 237(a)(1)(B). Ibid. Mr. Jaen admitted many of the charges of the NTA but argued,

pro se, that he was a citizen of the United States and thus not subject to removal. IJ Decision 2. The

Immigration Judge adjourned proceedings for further investigation, and in October 2016, Mr. Jaen

moved (now through counsel) to terminate the removal proceedings, arguing that he had acquired

citizenship at birth from Jorge Boreland.

In a written order, the Immigration Judge denied the motion. IJ Decision 16. The judge

first reviewed the available documentary evidence: a document indicating that Mr. Jaens biological

father was Liberato Jean Solis, a later birth certificate listing him as the son of Jorge Boreland,

evidence of Jorge and Leticia Borelands marriage, and declarations from his siblings that Jorge

decided to raise Jaen as his own son and that Jorge accepted him as his own son when he was

born. IJ Decision 3. Despite this evidence, the IJ concluded that Jorge Boreland was Mr. Jaens legal

parent for purposes of citizenship, denied the motion for termination of proceedings, and ordered

that Mr. Jaen be removed to Panama. App. IJ Decision 6.

This appeal timely followed.

Standard of Review

The Board reviews questions of law, discretion, and judgment de novo. 8 C.F.R.

1003.1(d)(3)(ii).

3
 Argument

An immigration judge may only conduct removal proceedings for an alien. 8 U.S.C.

1229a(a)(1). A person born abroad is presumed to be an alien, but may rebut that presumption by

establishing by a preponderance of the evidence that he is a United States citizen or national. Matter

of Romandia-Herreros, 11 I&N Dec. 772, 774 (BIA 1966). There are two sources of citizenship, and

two only: birth and naturalization. Miller v. Albright, 523 U.S. 420, 423 (1998) (citing United States v.

Wong Kim Ark, 169 U.S. 649, 702 (1898)). 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).

Mr. Jaen has proven by a preponderance of credible evidence that he acquired United

States citizenship at his birth. Matter of Tijerina-Villareal, 13 I&N Dec. 327, 330 (BIA 1969). Jaen

acquired United States citizenship through Jorge Boreland, pursuant to former INA 301(a)(7)

(1972) (redesignated in 1978 as 301(g)). At the time of Mr. Jaens birth, former INA 301(a)(7)

provided that a person born outside the geographical limits of the United States of parents one

of whom is an alien, and the other a citizen of the United States was a citizen at birth, if the childs

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.

For the reasons set forth below, Jaen satisfies those requirements: (1) he was born to a

parent, Jorge Boreland, who (2) was a United States citizen at the time of Mr. Jaens birth, and who

was physically present in the United States for the required period.

A. Jorge Boreland is Levy Jaens Parent

The first question is whether Jorge Boreland is Levy Jaens parent. More precisely, did the

United States regard its citizen and resident, Jorge Boreland, as Mr. Jaens parent for the purposes of

4
former 301? That is the only question relevant to the legal issue in this case, and the answer to it is

yes. The text of the INA uses the term parent, which has an established meaning at common law

and in the State of New York; former section 301 makes no mention of a blood relationship, which

other provisions of the INA do; and the courts to have interpreted this language have uniformly

held that no biological relationship is necessary. Every available indicator of statutory meaning

therefore points in the same direction: Jorge Boreland is Mr. Jaens parent under former section

301.

1. The Text of INA 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). The INA does not define the term parent in

for the context of Subchapter III of the INA (which governs acquired and derivative citizenship).

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). When a term in a statute is undefined, 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 background common-law understanding of the legal term

parent, which is still reflected in New York law, confirms that Jorge Boreland is Mr. Jaens parent.

At common law, when a man and woman were married and the woman gave birth to a child,

that man was the childs parent. See Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989) (plurality

opinion by Scalia, J.). This was a fundamental principle of the common law, grounded in an

aversion to declaring children illegitimate and thereby depriving them of rights they would

otherwise have. Id. at 125. 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 common law, in other words, a parent was

created by one of two events: (1) a childs birth to its mother, or (2) the mothers marriage to a

5
man. In re Adoption of Sebastian, 879 N.Y.S. 2d 677, 679 (N.Y. Sur. Ct. 2009). Because Jorge was

married to Leticia Boreland at the time of Mr. Jaens birth, he was his parent: pater est quom nuptiae

demonstrant.

This traditional definition of parenthood is retained under New York law, where Jorge

Boreland was living when Mr. Jaen was born. See Exhs. BF. Under New York law, a child born to

a married couple is the legitimate child of both parents. N.Y. Dom. Rel. Law 24(1) (emphasis

added). The rule that a child born to a marriage is the legitimate child of both parents is one of the

strongest and persuasive known to law. In re Estate of Fay, 375 N.E. 2d 735, 737 (1978). See also

Wendy G-M.- v. Erin G-M., 985 N.Y.S. 2d 845 (2014) (New Yorks public policy strongly favors the

legitimacy of children, 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 law) (internal citation omitted). On

the day Mr. Jaen was born, he therefore becameby operation of New York lawthe legitimate

child of both his mother and her husband.

It makes no difference that Jorge Boreland and Mr. 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 childs birth. Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 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.

2. The Statutory Context of 301 Confirms That No Blood Relationship is Required for Parenthood

A statutes 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. Here,

the text of former 301 contains no requirement of a blood relationship. Scales v. INS, 232 F.3d

1159, 1164 (9th Cir. 2000). That is significant, because other portions of the INA do expressly

require such a relationship. Ibid. When Congress includes particular language in one section of a

6
statute but omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion. Russello v. United Sates, 464 U.S.

16, 23 (1983); see also Nwozuzu, 726 F.3d at 32728 (applying this principle in a derivative-

citizenship case).

For example, if a child is born out of wedlock, then the INA does require the existence 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. Ibid. (quoting Custis v. Murphy, 511 U.S. 485, 492 (1994)). But

Congress included no requirement of a blood relationship between parents like Jorge Boreland and

children like Mr. Jaen, and that decision must be given effect.

3. Judicial Interpretations of 301 Confirm That No Biological Relationship is Required

Given the above, it is unsurprising that the only court of appeals to address this question has

confirmed that no biological relationship is necessary to be a parent for purposes of former 301,

so long as the couple is married before the childs birth. 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 116162.

Just as here, Scales and his mothers husband had no biological relationship. Ibid. 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:

Section 1401 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

7
 between Petitioner and his citizen father, as there is for an illegitimate child. We therefore
hold that Petitioner acquired citizenship at birth

Id. at 1166.3

Illustrating the point even more forcefully, in Solis-Espinoza v. Gonzales, the court of appeals

held that the petitioner had acquired citizenship at birth where his father (who was not an American

citizen) was married to an American woman who was not his biological motherthat is, 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, the fathers

marriage rendered his wife Solis-Espinozas parent, and the Ninth Circuitapplying 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. Ibid. The rule of Scales and

Solis-Espinoza suffices to decide this case.

The Second Circuit has not yet had an occasion to resolve this question, as the court below

observed (at 56). 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 reach

whether to adopt the reasoning of Scales and Solis-Espinoza because the petitioners U.S. citizen

stepfather had not been married to her mother at the time of her birth). But the Ninth Circuits

approach is the only possible one given the statutory text and background principles of family law,

and the Second Circuit has already disapproved one attempt by the government to define father

narrowly, in a different acquired citizenship case. See United States v. Connolly, 552 F.3d 86, 88-91 (2d

3 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 interpreting the citizenship statute for a person in the United States. Scales, 232
F.3d at 1165-66.

8
Cir. 2008). See also Nwozuzu, 726 F.3d at 333 (concluding that BIAs interpretation of the derivative-

citizenship statute was inconsistent with the text of the statute); Duarte-Ceri v. Holder, 630 F.3d 83

(2d Cir. 2010) (refusing to give effect to the governments proposed legal fiction where it would

deny the most precious right of citizenship).

Notably, neither the government nor the court below contend that Scales and Solis-Espinoza

were wrongly decided. Instead, the government first urges (at 3) that those cases were different

because the non-biological parent was at all times listed on the birth certificate. That is a grave

misreading of both those decisions and the governments own arguments in those cases. In fact, the

governments brief in Solis-Espinoza complained in particular that a birth certificate which lists

anyone other than the petitioners biological mother would not be accurate. Br. For Respondent,

Solis-Espinoza v. Ashcroft, No. 03-70625 (9th Cir. Oct. 16, 2003), 2003 WL 22768187. But the Solis-

Espinoza opinion mentions the birth certificate only once in passing, and nothing in the courts

analysis turned on the matter. 401 F.3d at 1090.

Even more clearly (as the court below recognized), Scales says absolutely nothing about the

petitioners birth certificate or who was listed on it. 232 F.3d at 116162. But in Scales, the

governments brief argued that the petitioners 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. So

while Scales and Solis-Espinoza do make plain that the government has been urging birth-certificate-

based arguments in this context for some time, such arguments have never met with the slightest

success, and there is no reason for a different result here.

Nor is it any more accurate to say that Scales or Solis-Espinoza were different because, as the

government argues (at 3), the non-biological parents were the only recognized parents. First, in

9
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. Why it would matter if the biological

parents identity (rather than mere existence) were known, under that circumstance, the government

never says. Moreover, in Solis-Espinoza, just as here, the identity of the childs 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 109192. It is therefore

inaccurate to say that no other parent was recognized.

Aside from these factual inaccuracies, the governments attempted distinctions with Scales

and Solis-Espinoza do no legal work. Whether or not Jorge Boreland was Mr. Jaens parent does not

turn on the content of a birth certificatethat status arose by operation of law, given his marriage

to Jaens mother. Nothing about the courts reasoning in either case turned on the content of the

birth certificate, probably because the relevant provision of the INA makes no mention of one. Nor

does it matter whether there is any other recognized biological relationship; indeed, it is precisely

when a biological relationship can be recognized that the traditional legal definition of parentage is

most essential. See Michael H., 491 U.S. at 124 (purpose of the traditional rule is to protect the

marital family against claims by biological relatives). In both Scales and Solis-Espinoza, all that

mattered was that (1) just as here, one of the petitioners biological parents was married to a United

States citizen at the time of his birth; (2) just as here, state law provided that in that situation, the

married couple were petitioners legal parents; and (3) just as here, to the extent relevant, the non-

biological parent accepted and treated the petitioner as the parents child.4

4
The court below also concluded (at 5) that the BIA has declined to extend Scales or Solis-Espinoza. But the cited
nonprecedential decisions are far afield of the circumstances here. In re Rodolfo Lastimosa, 2013 WL 3899763 (BIA 2013)
concerned an immigrant who was adopted by his grandfather after his birth, and the BIA explicitly concluded that its
decision was consistent with Scales and Solis-Espinoza. That is nothing like the situation here, where Mr. Jaens parent was
a citizen on the day of his birth. The same is true of Matter of J-C-C-P-, 2016 WL 4619949 (AAO 2016), a non-

10
 4. The Governments Argument That Mr. Jaen Was Not Jorge Borelands Child Is Both Mistaken
and Irrelevant

In the governments motion for summary affirmance, it argues (at 2) that because Mr. Jaen

is not Mr. Borelands natural child and was never adopted, he is not his child as the INA uses

that term. INA 101(c)(1). This is both fundamentally mistaken and quite irrelevant. Nothing in this

case turns on the INAs definition of childit is about whether Jorge Boreland was Mr. Jaens

legal parent on the day he was born. But at any rate, the government has misunderstood the INAs

definition of that term.

First, 101(c)(1) defines a child as an unmarried person under twenty-one years of age,

which Mr. Jaen certainly was at birth. The INAs definition of child makes no mention of a blood

relationship between a child and his parent, and indeed does not attempt to define which children

belong to which parents. To be sure, 101(c)(1) further provides that child includes a child

legitimated (emphasis added) under the law of either his residence or his fathers, but that does not

matter: that portion of the statute expands the definition of child. Mr. Jaen did not, at any rate,

require legitimation. He was born into a marriage, was Jorge Borelands legitimate child at birth for

that reason, and nothing in the INA is to the contrary.

More fundamentally, though, the government is missing the point. The issue is not whether

Jaen was a child at birth. (Of course he was.) The question is who, legally speaking, his parents

wereand under the long-standing common-law definition as well as New York family law, those

precedential decision in which the applicant was born out of wedlock and later legitimated by his stepfather. Mr. Jaen,
however, was born to married parents.

The Boards conclusion in In re Torres-Valdez is even less relevant. 2005 WL 3802143 (BIA 2005). The issue in
that case was that the petitioner had not demonstrated that either of his parents was a citizen (both were identified as
Mexican nationals in the record before the Board), but the government here does not dispute that Jorge Boreland was a
citizen at the time of Mr. Jaens birth.

11
parents were Jorge and Leticia Rogers Boreland.5 That is the only conclusion consistent with the text

of the statute as interpreted by both Scales and Solis-Espinoza.

5. Events After Mr. Jaens Birth Are Irrelevant to the Statutory Question of Whether Jorge Boreland is
His Parent

In the decision below (at 5), the court distinguished Scales and Solis-Esponiza on the grounds

that the petitioners in those cases were raised from birth by their citizen and noncitizen parents.

(Mr. Jaen spent part of his early life with his grandparents in Panama. Exh. B.) This focus on the

nature of the relationship between Jorge Boreland and Mr. Jaen after his birth was inappropriate for

several reasons.

First, 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. Ibid. (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 persons 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. Jaens birth are thus irrelevant to whether he 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.

5 See also Matter of Guzman-Gomez, 24 I&N Dec. 824, 826 n. 3 (BIA 2009) (noting that unlike the derivative citizenship
statute at issue in Guzman-Gomez, the acquired citizenship statute at issue in Scales and Solis-Espinoza [and here] does not
use the term child and thus does not require interpretation of that term, which is defined different ways in the INA).

12
 Second, at minimum, the court below erred in resting in its analysis (at 5) on Mr. Jaens

relationship with [Jorge Boreland] without providing any opportunity for an evidentiary hearing

on that issue, which Mr. Jaen requested in his motion to terminate if the written submissions did not

sufficiently prove his claim. See Mot. to Terminate at 9. If the undisputed parent-child relationship

is relevant, as the court below thought (at 5), then Mr. Jaen should have had the opportunity to

testify on that issue, and to introduce in-person testimony from (for example) his siblings. (For what

it is worth, those siblings have already attested in writing that Jorge Boreland raised Mr. Jaen has his

own son. Exhs. B, D.) It is passing strange to not schedule an evidentiary hearing at which proof of

the relationship could be adduced and then conclude that the evidence presented is insufficient. IJ

Decision 5. If the Board therefore thinks Mr. Jaens relationship with Jorge Boreland as a child is

relevant to the citizenship question, it should remand with instructions to conduct an evidentiary

hearing on the matter.

Finally, the distinction the court below drew between this case and Scales is unpersuasive on

its own terms. What the court below appeared to contemplate is a freewheeling all-things-considered

inquiry as to the nature of the relationship between a young child and his citizen parent. 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 v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015). The

rule adopted by the court below, by contrast, will guarantee pervasive inconsistency and

confusion. Id. at 615. As human experience readily demonstrates, evaluating the closeness of a

parent-child relationship is not easy, and every case will present new and unanswerable questions.

What if Mr. 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 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

13
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.

6. The Question of Legitimation Under Panamanian Law Is Irrelevant

Finally, the government (at 2-3) and the court below (at 5) were mistaken when they

analyzed whether Mr. Jaen was legitimated by Jorge Boreland. The government contends this was

impossible because Panamanian law does not distinguish between children born in- or out-of-

wedlock. That is mistaken. First, the Panamanian Constitution provides simply that parents have

the same duties with respect to their children born out of wedlock as they do toward children born

in wedlock. Matter of Sinclair, 13 I. & N. Dec. 613, 614 (BIA 1970). But that says nothing at all about

Jaens situation because he was not born out of wedlock. Moreover, that provision does not

attempt to define who the parents are, which is the central question at issue here.

Moreover, the implied premise of the governments argument appears to be that when

analyzing what former 301 means by parent, the Board should incorporate by reference the

content of Panamanian law, where Mr. Jaen was born. Neither the government nor the court below

offered any legal authority for that proposition, and none exists. Former 301 makes no mention of

the content of foreign law, and when the INA meant that law to be relevant, it does so explicitly.

For example, in Subchapters I and II of the INA (which do not apply here), the term child is

defined by reference to the law of the childs residence or domicile, or under the law of the fathers

residence or domicile. INA 101(b)(1)(C). Similarly, the treatment of children born out of wedlock

(which Mr. Jaen was not) requires application of the law of the persons residence or domicile.

INA 309(a)(4)(A).

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 By contrast, former 301 simply speaks of parents. When a statute uses a single term

without differentiation to various categories of aliens that are its subject, then it must be given

the same meaning with respect to each category. Clark v. Martinez, 543 U.S. 371, 378 (2005). That is

because to give the same words in a statute a different meaning for different categories of

aliens would be to invent a statute rather than interpret one. Ibid. A Mexican child cannot have,

under the same provision, differently-defined parents than a Panamanian one. Put differently, the

same statutory text cannot be given different meanings in different cases, which is what the

governments interpretation would achieve here. Id. at 386. When Congress wanted the content of

foreign law to be relevant in the INA, it said so; it did not in former 301, and that is the end of the

matter.

B. Jaen Satisfies Both of the Other Requirements for Acquired Citizenship

If Jorge Boreland is Mr. Jaens parent, then he is entitled to citizenship as the other

requirements of former 301 are not in serious doubt. First, Jorge Boreland became a U.S. citizen on

January 30, 1961. The Boreland family has located an early passport of Jorge Borelands 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 Exh. I (passport).

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 Exs. B-F; Ex. G

(Broadway cast recording notes showing Mr. Boreland was in the cast of the 1957 musical

Jamaica). 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

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career. See Exs. B-D. 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. Atty 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 fathers passport).

If the Board is persuaded that Jorge Boreland is Mr. Jaens parent under former 301, it

should therefore terminate the removal proceedings as there appears to be no live dispute that the

other requirements for acquired citizenship are satisfied.

C. In the Alternative, The Board Should Conclude that Jorge Boreland is Jaens
Parent and Remand for a Determination on Jorges Citizenship and Residency

The usual rule is that the immigration judge should terminate removal proceedings if the

respondent presents a preponderance of credible evidence sufficient to rebut the presumption of

alienage which attaches by reason of his birth abroad. Tijerina-Villareal, 13 I&N Dec. at 330. As the

Board has noted, where a claim to citizenship has reasonable support, it cannot be rejected

arbitrarily. Id. at 331. If the evidence appears to be conflicting, the Immigration Judge must evaluate

and weigh it before deciding whether there is in fact clear, unequivocal, and convincing evidence

that the grounds for deportation are correct. Id. at 331, n. 2 and accompanying text.

Jaen is entitled to a termination of his removal proceedings, for the reasons set forth above.

In the alternative, however, the Board could determine that Jaens parent was Jorge Boreland, and

remand to the immigration judge to make determinations on the other requirements, including

scheduling a hearing so to present witnesses in support of Jorges citizenship and residency if

necessary.

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