Jaen Govt Brief

Case 17-1512, Document 110, 12/18/2017, 2196920, Page1 of 26
No. 17-1512
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
LEVY ALBERTO JAEN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER

OF THE BOARD OF IMMIGRATION APPEALS
Agency No. A076-187-995
BRIEF FOR RESPONDENT
CHAD A. READLER RACHEL L. BROWNING

Acting Assistant Attorney General Trial Attorney
Civil Division U.S. Department of Justice
Civil Division
Office of Immigration Litigation
KEITH I. McMANUS Ben Franklin Station, P.O. Box 878
Assistant Director Washington, DC 20044-0878
Office of Immigration Litigation (202) 532-4526
ATTORNEYS FOR RESPONDENT

STATEMENT REGARDING ORAL ARGUMENT
Respondent believes that the issues presented can be determined upon the
record and that oral argument would not benefit the panel. Should the Court
consider oral argument appropriate, counsel for Respondent will attend and present
Respondent’s position.
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF JURISDICTION..........................................................................1
COUNTERSTATEMENT OF THE ISSUE ..............................................................2
STATEMENT OF THE CASE ..................................................................................3
I. Background and Removal Proceedings. ...............................................3
II. The Immigration Judge’s Decision. ......................................................5
III. The Board’s Decision. ...........................................................................8
SUMMARY OF THE ARGUMENT ........................................................................9
I. Scope and Standard of Review............................................................10
II. The Agency Properly Denied Mr. Jaen’s Motion to Terminate

Because He Failed to Demonstrate That He Acquired United
States Citizenship at Birth. ..................................................................10
A. Burden of Proof for Citizenship Claims under 8 U.S.C.

§ 1252(b)(5). .............................................................................10
B. Legal Standards for Acquiring Citizenship at Birth. ................12
C. Mr. Jaen Did Not Acquire United States Citizenship at

Birth Because Neither of his Biological Parents Were
United States Citizens. ..............................................................12
CONCLUSION ........................................................................................................18
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
CASES
Almeida-Amaral v. Gonzales,
461 F.3d 231 (2d Cir. 2006) ..................................................................................10
Berenyi v. INS,
385 U.S. 630 (1967) ..............................................................................................11
Brissett v. Ashcroft,
363 F.3d 130 (2d Cir. 2004) ..................................................................................13
Colaianni v. INS,
490 F.3d 185 (2d Cir. 2007) ........................................................................... 10, 13
Commissioner of Social Services ex rel. N.Q. v. B.C.,

147 A.D.3d 1 (N.Y.A.D. 1 Dept., 2016) ...............................................................16
Crider v. Ashcroft,
74 F. App’x 729 (9th Cir. 2003) ...........................................................................17
Drozd v. INS,
155 F.3d 81 (2d Cir. 1998) ....................................................................................12
Garcia v. ICE,
669 F.3d 91 (2d Cir. 2011) ............................................................................. 13, 14
Gil v. Sessions,
851 F.3d 184 (2d Cir. 2017) ..............................................................................2, 11
Gupta v. Att’y Gen’l,

52 F. Supp. 3d 677 (S.D.N.Y. 2014).....................................................................11
INS v. Pangilinan,
486 U.S. 875 (1988) ..............................................................................................11
Kamara v. Lynch,
786 F.3d 420 (5th Cir. 2015).................................................................................11
ii
Marquez-Marquez v. Gonzales,
455 F.3d 548 (5th Cir. 2006).................................................................................13
McConney v. INS,
429 F.2d 626 (2d Cir. 1970) ..................................................................................11
Miller v. Albright,
523 U.S. 420 (1998) ..............................................................................................12
Moreno v. Holder,
980 F. Supp. 2d 394 (E.D.N.Y. 2013) ..................................................................11
Ogundoju v. Holder,
390 F. App’x 134 (3d Cir. 2010) ..........................................................................11
Runnett v. Shultz,
901 F.2d 782 (9th Cir. 1990).................................................................................12
Scales v. INS,
232 F.3d 1159 (9th Cir. 2000)................................................................ 7, 8, 16, 17
Solis-Espinosa v. Gonzales,
401 F.3d 1090 (9th Cir. 2005)................................................................ 7, 8, 16, 17
Vlisidis v. Holland,
245 F.2d 812 (3d Cir. 1957) ..................................................................................10
ADMINISTRATIVE DECISIONS
Matter of Leyva,
16 I&N Dec. 118 (BIA 1977) ...............................................................................10
Matter of Rodriguez-Tejedor,
23 I&N Dec. 153 (BIA 2001) ...............................................................................12
Matter of Sinclair,
13 I&N Dec. 613 (BIA 1970) .................................................................................6
iii
STATUTES
Immigration and Nationality Act of 1952, as amended:
8 U.S.C. § 1227(a)(1)(B) ...........................................................................................4
8 U.S.C. § 1227(a)(2)(B)(i)........................................................................................4
8 U.S.C. § 1252(a)(1) .................................................................................................2
8 U.S.C. § 1252(b)(1).................................................................................................2
8 U.S.C. § 1252(b)(2).................................................................................................2
8 U.S.C. § 1252(b)(5)(A) .............................................................................. 2, 10, 11
8 U.S.C. § 1252(b)(5)(B) .........................................................................................11
8 U.S.C. § 1401 ........................................................................................................17
8 U.S.C. § 1401(a)(7) ................................................................................... 5, passim
8 U.S.C. § 1401(c)-(e)................................................................................................5
8 U.S.C. § 1401(g)-(h) ...............................................................................................5
8 U.S.C. § 1432(a) (1996) ........................................................................................13

New York Penal Law:
NYPL § 220.09(1)......................................................................................................3
NYPL § 265.01(b)(1) .................................................................................................3
REGULATIONS
8 C.F.R. § 1003.1(b)(3) ..............................................................................................2
iv
No. 17-1512
_____________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
_____________________________________________________
LEVY ALBERTO JAEN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.
_____________________________________________________
ON PETITION FOR REVIEW OF A FINAL ORDER OF

THE BOARD OF IMMIGRATION APPEALS
Agency No. A076-187-995
_____________________________________________________
BRIEF FOR RESPONDENT

_____________________________________________________
STATEMENT OF JURISDICTION
This is an immigration case in which Petitioner Levy Alberto Jaen (“Mr.
Jaen”) seeks review of a final order of removal issued by the Board of Immigration
Appeals (“Board”) on May 2, 2017. Certified Administrative Record (“A.R.”) 3-5.
In its decision, the Board dismissed Mr. Jaen’s appeal from an Immigration
Judge’s decision denying his motion to terminate removal proceedings based on
his assertion that he is a United States citizen by birth. A.R. 3-5; see A.R. 61-66.
The Board’s jurisdiction arose under 8 C.F.R. § 1003.1(b)(3), which grants it
appellate jurisdiction over decisions of immigration judges in removal
proceedings.
This Court’s jurisdiction arises under 8 U.S.C. § 1252(a)(1), which confers
exclusive jurisdiction upon the Courts of Appeals to review final orders of removal
issued by the Board. Where, as here, a petitioner claims that he is a United States
citizen and is therefore not an alien subject to removal, the Court “shall decide the
nationality claim” if it finds “from the pleadings and affidavits that no genuine
issue of material fact about the petitioner’s nationality is presented.” 8 U.S.C.
§ 1252(b)(5)(A); Gil v. Sessions, 851 F.3d 184, 189 (2d Cir. 2017) (concluding
that petitioner failed to show a genuine issue of material fact). Mr. Jaen timely
filed his petition for review on May 9, 2017, within thirty days of the Board’s
decision. 8 U.S.C. § 1252(b)(1). Venue is proper because the proceedings before
the Immigration Judge concluded in New York, New York, which is within the
Second Circuit’s jurisdiction. See 8 U.S.C. § 1252(b)(2).
COUNTERSTATEMENT OF THE ISSUE
Whether the agency properly denied Mr. Jaen’s motion to terminate removal
proceedings based on his assertion that he is a United States citizen, where the
2
evidence reveals that Mr. Jaen was born in Panama, that neither of his parents at
the time of his birth was a United States citizen, and that he lived in the custody of
his Panamanian grandparents in Panama until the age of sixteen; and where,
notwithstanding his step-father’s status as a United States citizen, Mr. Jaen has
failed to demonstrate that he acquired the status of a United States citizen at birth.
STATEMENT OF THE CASE
I. Background and Removal Proceedings.

Mr. Jaen is a native and citizen of Panama who was admitted to the United
States on May 8, 1988, as a nonimmigrant visitor with authorization to remain until
November 8, 1988. A.R. 680. On December 10, 2008, Mr. Jaen was convicted of
criminal possession of a controlled substance (cocaine) in the fourth degree, in
violation of New York Penal Law (“NYPL”) § 220.09(1). A.R. 652, 680. On
September 22, 2014, he was convicted of criminal possession of a controlled
substance (heroin) in the fourth degree, in violation of NYPL § 220.09(1), and
criminal possession of a firearm/weapon, in violation of NYPL § 265.01(b)(1).
A.R. 651, 680.
On April 17, 2015, the Department of Homeland Security (“DHS”)
commenced removal proceedings against Mr. Jaen by filing a Notice to Appear
(“NTA”) in immigration court, charging him with removability pursuant to
3
8 U.S.C. § 1227(a)(1)(B), as an alien who, after admission as a nonimmigrant, had
remained in the United States for a time longer than permitted, and 8 U.S.C.
§ 1227(a)(2)(B)(i), as an alien convicted of a crime related to a controlled
substance offense. A.R. 678-80.
On September 23, 2015, after receiving two continuances from the
Immigration Judge to find an attorney, Mr. Jaen appeared in removal proceedings
in Napanoch, New York, where he initially admitted the allegations contained in
the NTA. A.R. 82-86. The Immigration Judge then informed him that, because he
had overstayed his visa and had been convicted of two separate controlled
substance offenses, he was removable by clear and convincing evidence. A.R. 89.
However, because Mr. Jaen indicated that his mother was married to a United
States citizen at the time of his birth, the Immigration Judge continued the hearing
to allow him additional time to collect more information and determine whether he
had a claim to United States citizenship. A.R. 101-06.
Mr. Jaen’s case subsequently was transferred to New York, New York. See
A.R. 532-35. On August 30, 2016, DHS filed with the immigration court a
memorandum on alienage, arguing that Mr. Jaen had not made a “probative claim”
to United States citizenship. A.R. 298-301. On October 18, 2016, Mr. Jaen, with
the assistance of counsel, filed a motion to terminate proceedings, arguing that he
4
was not removable because he had acquired United States-citizenship at birth from
his deceased step-father. See A.R. 303-414 (motion and supporting documents).
II. The Immigration Judge’s Decision.
The Immigration Judge denied Mr. Jaen’s motion to terminate in a written
decision issued December 8, 2016. A.R. 61-66. The Immigration Judge noted that
Mr. Jaen was born in Panama and explained that, a person who is born abroad is
prima facie an alien and must rebut that presumption by establishing by a
preponderance of the evidence that he is a U.S. citizen or national. A.R. 62. The
Immigration Judge further explained that a child born abroad to a parent who is a
United States citizen may acquire United States citizenship at birth under certain
circumstances. Id. (citing 8 U.S.C. § 1401(c)-(e), (g)-(h)). And, at the time of Mr.
Jaen’s birth in 1972, he would have acquired U.S.-citizenship if one of his parents
had been a United States citizen and, prior to his birth, “[had been] 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.” A.R. 62 (quoting 8 U.S.C. § 1401(a)(7) (1972)). Based on the evidence
Mr. Jaen provided, however, the Immigration Judge determined that he had not
established that his stepfather, Jorge Boreland (“Mr. Boreland”), was his “parent”
under the law at the time of his birth. A.R. 63.
5
The Immigration Judge found that the birth documents both Mr. Jaen and
DHS submitted showed that his biological father was “Liberato Jaen Solis” and not
Mr. Boreland. A.R. 63. The Immigration Judge also acknowledged that the
reissued birth certificate Mr. Jaen submitted listed him as the son of “Jorge
Boreland,” but noted that the certificate stated that it “can only be used for
scholastic purposes . . . .” Id. And the Immigration Judge noted that Mr. Jaen
submitted a marriage certificate from Panama for “Leticia Rogers Gutierrez” (his
mother) and “Jorge Calderwood Boreland Frazier,” as well as declarations from his
sister and brother indicating that, while Mr. Boreland was not Mr. Jaen’s biological
father, he accepted and raised him as his son. Id.
The Immigration Judge concluded that the documents submitted did not
establish that Mr. Boreland was Mr. Jaen’s legal father for purposes of acquiring
United States citizenship. A.R. 64. The Immigration Judge first determined that,
even though Mr. Jaen’s mother was never married to his biological father, under
Panamanian law, Mr. Jaen was still his biological father’s “legitimate” child. Id.
(citing Matter of Sinclair, 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)). The Immigration Judge also determined that the fact that Mr.
Boreland accepted Petitioner “as his own son” was insufficient to demonstrate that
he was his legal parent. A.R. 64.

6
The Immigration Judge rejected Mr. Jaen’s argument that Ninth Circuit case
law supported his legal claim to citizenship, explaining that, while the Ninth
Circuit had concluded that a blood relationship was not required for someone to
acquire United States-citizenship at birth, Mr. Jaen’s case was distinguishable.
A.R. 64-65; see Scales v. INS, 232 F.3d 1159, 1162 (9th Cir. 2000); Solis-
Espinosa v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). The Immigration Judge
explained that, unlike the petitioners in Scales and Solis-Espinosa, who were
considered the “legitimate” children of their non-biological United States-citizen
parent at the time of their birth, the identity of Mr. Jaen’s biological father,
“Liberato Jaen Solis,” was known at the time of his birth, and Mr. Jaen’s birth
documents indicated that he was his “legitimate” son. A.R. 65. In addition, the
Immigration Judge noted that Mr. Jaen had not been raised by his United States-
citizen step-father from birth; rather, he had been raised by his Panamanian
grandparents in Panama. Id.
The Immigration Judge further concluded that, even if Mr. Jaen’s evidence
supported a different conclusion, the Immigration Judge was bound by the
precedent of the Second Circuit and the Board, neither of which had ruled on this
specific issue. A.R. 65. Moreover, the Immigration Judge noted that, in several
unpublished decisions, the Board had declined to extend the reasoning of the Ninth
Circuit’s case law to similar situations. Id. Accordingly, the Immigration Judge
7
concluded that because Mr. Jaen had not established that Mr. Boreland was his
parent at the time of his birth, he failed to show that he had acquired United States
citizenship under former 8 U.S.C. § 1401(a)(7). Id. The Immigration Judge thus
denied Mr. Jaen’s motion to terminate and ordered his removal to Panama. Id.
III. The Board’s Decision.

The Board dismissed Mr. Jaen’s appeal from the Immigration Judge’s
decision in a written decision issued May 2, 2017. A.R. 3-5. The Board agreed
with the Immigration Judge’s conclusion that Mr. Jaen had not demonstrated that
he had acquired United States-citizenship from his step-father at the time of his
birth. A.R. 3. In considering the evidence Mr. Jaen submitted, the Board observed
that his Panamanian birth certificate showed him to be the child of his Panamanian
biological father (and not of his mother’s United States-citizen husband) and that
he had been given his biological father’s surname. A.R. 4. The Board determined
that the facts of Mr. Jaen’s case were distinguishable from the Ninth Circuit’s
decisions in Scales and Solis-Espinoza because his initial birth certificate listed
him as the son of his Panamanian biological father, and his second birth certificate,
“labeled for ‘scholastic purposes,’” was not issued until several years after his birth
and thus did not establish a parental relationship between Mr. Jaen and his United
States-citizen step-father at the time of his birth. A.R. 4. The Board further agreed
with the Immigration Judge that the declarations from Mr. Jaen’s relatives were
8
insufficient to meet his burden of demonstrating by a preponderance of the
evidence that his step-father was his father at birth under former 8 U.S.C.
§ 1401(a)(7). Id. The Board therefore dismissed Mr. Jaen’s appeal, and this
petition for review followed.
SUMMARY OF THE ARGUMENT
The Court should deny the petition for review because Mr. Jaen has failed to
establish that he is a United States citizen. Because Mr. Jaen was born in Panama,
he could have acquired United States citizenship only in accordance with the terms
provided by Congress. In this case, the undisputed record evidence reveals that
neither of his parents at the time of his birth was a United States citizen and that
Mr. Jaen lived in Panama in the custody of his Panamanian grandparents until the
age of sixteen.
Although Respondent acknowledges that children born in wedlock are
generally presumed to be the issue of that marriage, the presumption of paternity is
not determinative in citizenship cases. As a matter of policy, both United States
Citizenship and Immigration Services and the State Department require the
existence of a biological relationship for an individual to acquire United States
citizenship through a parent. And, in this case, the only evidence of paternity from
the time of Mr. Jaen’s birth is his contemporaneously-issued birth certificate,
which lists his Panamanian biological father – and not his U.S.-citizen step-father –
9
as his father. Accordingly, the agency properly declined to terminate Mr. Jaen’s
removal proceedings, and the Court should not disturb its decision.
ARGUMENT
I. Scope and Standard of Review.
This Court reviews de novo Mr. Jaen’s claim that he is a United States
citizen. See Colaianni v. INS, 490 F.3d 185, 187 (2d Cir. 2007) (citing 8 U.S.C.
§ 1252(b)(5)(A) (“If the petitioner claims to be a national of the United States and
the court of appeals finds . . . that no genuine issue of material fact about the
petitioner’s nationality is presented, the court shall decide the nationality claim.”)).
II. The Agency Properly Denied Mr. Jaen’s Motion to Terminate Because
He Failed to Demonstrate That He Acquired United States Citizenship
at Birth.
A. Burden of Proof for Citizenship Claims under 8 U.S.C.

§ 1252(b)(5).
Before the agency in removal proceedings, a concession of foreign birth
gives rise to a presumption of alienage and shifts the burden to the individual in
proceedings to provide substantial, credible evidence of citizenship. See Vlisidis
v. Holland, 245 F.2d 812, 814 (3d Cir. 1957); Matter of Leyva, 16 I&N Dec. 118,
119 (BIA 1977); cf. Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir.
2006) (explaining that the burden of proof shifts to the petitioner once the
government has established his identity and alienage). At the petition for review
10
phase, the burden is on the petitioner to show that he meets the qualifications for
citizenship for purposes of a decision under 8 U.S.C. § 1252(b)(5)(A). Gil, 851
F.3d at 188; see also Berenyi v. INS, 385 U.S. 630, 637 (1967) (observing that “it
has been universally accepted that the burden is on [Petitioner] to show his
eligibility for citizenship in every respect”); accord INS v. Pangilinan, 486 U.S.
875, 886 (1988). In removal proceedings, as the agency properly determined, Mr.
Jaen’s birth in Panama created a rebuttable presumption of alienage. See
McConney v. INS, 429 F.2d 626, 630 (2d Cir. 1970) (“The government proved
petitioner was born in Panama, and the burden was on the petitioner to prove he
was a United States citizen.”).1
1
While there is no genuine issue of material fact as to Mr. Jaen’s nationality, and
transfer to district court is thus unwarranted in this case, the burden of proof in a
proceeding transferred under 8 U.S.C. § 1252(b)(5)(B) would be on the petitioner
to show nationality by a preponderance of the evidence. See, e.g., Kamara v.
Lynch, 786 F.3d 420, 425 (5th Cir. 2015) (concluding that upon transfer, petitioner
“bears the burden of proving by a preponderance of credible evidence that he
qualifies for naturalization”); Ogundoju v. Holder, 390 F. App’x 134, 137 (3d Cir.
2010) (reviewing a district court denial of citizenship in an 8 U.S.C.
§ 1252(b)(5)(B) case, and stating that “[a] person claiming United States
citizenship has the burden of establishing his eligibility, and all doubts are resolved
in favor of the United States and against the claimant”); Gupta v. Att’y Gen’l, 52
F. Supp. 3d 677, 679, 684 (S.D.N.Y. 2014) (explaining that following transfer
under 8 U.S.C. § 1252(b)(5)(B), the petitioner “seeks a declaratory judgment that
he is a United States citizen” and that he bears the burden of proof as to relevant
factual issues “by a preponderance of the evidence”); Moreno v. Holder, 980 F.
Supp. 2d 394, 397 (E.D.N.Y. 2013) (applying preponderance of the evidence
burden to a petitioner in proceeding transferred under 8 U.S.C. § 1252(b)(5)(B)).
11
B. Legal Standards for Acquiring Citizenship at Birth.
“Persons not born in the United States acquire citizenship by birth only as
provided by Act of Congress.” Miller v. Albright, 523 U.S. 420, 423-24 (1998).
The citizenship of a person born abroad is determined by the law in effect at the
time of that individual’s birth. See Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998)
(explaining that “‘[t]he applicable law for transmitting citizenship to a child born
abroad when one parent is a [United States] citizen is the statute that was in effect
at the time of the child’s birth’”) (quoting Runnett v. Shultz, 901 F.2d 782, 783
(9th Cir. 1990))); Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001)
(“In determining whether an individual acquired citizenship at birth, the statute in
effect at the time of the person’s birth is generally controlling.”) (internal citation
omitted). The relevant statutory language in this case, 8 U.S.C. § 1401(a)(7)
(1970), provided that an individual born outside the United States was a citizen at
birth if, inter alia, he was born “of parents one of whom is an alien, and the other a
citizen of the United States.”
C. Mr. Jaen Did Not Acquire United States Citizenship at Birth

Because Neither of his Biological Parents Were United States
Citizens.
Mr. Jaen argues that he acquired United States citizenship at the time of his
birth because former 8 U.S.C. § 1401(a)(7) purportedly did not require the
existence of a blood relationship for a child to be considered the legal child of his
12
parent, and because New York State law recognizes the common-law presumption
that a child born to a married couple is the child of that couple. See Petitioner’s
Brief (“Pet. Br.”) at 9-13. As an initial matter, Respondent acknowledges that, in
Garcia v. ICE, this Court explained that it “often look[s] to state law for a rule of
decision ‘[w]here . . . there is no extant body of federal common law in the area of
law implicated by the statute.’” 669 F.3d 91, 95 (2d Cir. 2011) (quoting Brissett v.
Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004)). However, Garcia should not control
the outcome of this case because the Court was addressing a different issue –
specifically, whether a naturalizing parent had “legal custody” of a child claiming
derivative citizenship under former 8 U.S.C. § 1432(a) (1996). Garcia, 669 F.3d at
95. Moreover, the Court in Garcia looked to New York law to define “legal
custody” in large part because there were genuine issues of material fact in dispute
as to custody, and Garcia and his family all resided in New York at the time of the
relevant events in that case (Garcia’s parents’ divorce and his father’s
naturalization). 669 F.3d at 96-97.
Here, by contrast, it is undisputed that Mr. Jaen resided in Panama at the
time of his birth in 1972, which is the only relevant time to consider because it is
the moment when Mr. Jaen’s citizenship vested. See Colaianni, 490 F.3d at 187
(emphasizing need for consideration of circumstances at time of claimant’s birth);
Marquez-Marquez v. Gonzales, 455 F.3d 548, 557-58 (5th Cir. 2006) (emphasizing
13
the importance of considering facts at time of birth for citizenship determinations
under successor statute to former 8 U.S.C. § 1401(a)(7)). Indeed, unlike in Garcia,
there are no facts in dispute in this case, and Mr. Jaen remained in Panama until he
was sixteen years old, well after either of his birth certificates was issued. Thus,
under the reasoning of Garcia, the Court should not apply New York law to
determine the paternity of an individual who did not live in New York at the time
the events relevant to his paternity occurred.
Absent a reason to look to New York law as to paternity, as a matter of
policy, both U.S. Citizenship and Immigration Services (“USCIS”) and the State
Department require the existence of a biological relationship for an individual to
acquire United States citizenship through a parent under former 8 U.S.C.
§ 1401(a)(7). The USCIS Policy Manual states that “[a]lthough a stepchild may be
the stepparent’s ‘child’ for purposes of visa issuance, the stepchild is not the
stepparent’s ‘child’ for purposes of citizenship,” and that “[a] stepchild is ineligible
for citizenship . . . through the U.S. citizen stepparent, unless the stepchild is
adopted and the adoption meets certain requirements.” USCIS Policy Manual,
Volume 12, Part H, Chapter 2(A).2 Critically, “absent other evidence, USCIS
2
Available at https://www.uscis.gov/policymanual/HTML/PolicyManual-
Volume12-PartH-Chapter2.html
14
considers a child’s birth certificate as recorded by a proper authority as sufficient
evidence to determine a child’s genetic relationship to the parent,” and the “parent
(or parents) who is included in the birth certificate is presumed to have legal
custody of the child absent other evidence.” Id.
In addition, the U.S. Department of State’s Foreign Affairs Manual notes
that, since 1790, one of the “prerequisites” for transmitting United States
citizenship at birth to a child born abroad is that “[a]t least one biological parent
[was] a U.S. citizen when the child was born.” 7 FAM 1131.2(1). Moreover, “[i]t
is not enough that the child is presumed to be the issue of the parents’ marriage by
the laws of the jurisdiction where the child was born. Absent a blood relationship
between the child and the parent on whose citizenship the child’s own claim is
based, U.S. citizenship is not acquired.” 7 FAM 1131.4-1(a) (emphasis added).
The manual further acknowledges that “[c]hildren born in wedlock are generally
presumed to be the issue of that marriage,” but states that “[t]his presumption is not
determinative in citizenship cases . . . because an actual biological relationship to a
U.S. citizen parent is required.” 7 FAM 1131.4-1(d). The manual thus directs
consular officers to examine, inter alia, the “[n]aming on the birth certificate,” to
determine whether the U.S.-citizen parent is “biologically related to the child.”
7 FAM 1131.4-1(d)(2). In this case, it is undisputed that Mr. Jaen’s birth
certificate lists his Panamanian biological father, “Liberato Jaen Solis,” as his
15
father.3 A.R. 4; see A.R. 217-18. Accordingly, the Board’s decision in this case is
in accordance with the policy guidance issued by the agencies charged with
making citizenship determinations under the relevant statute.4
The only evidence of paternity from the time of Mr. Jaen’s birth is his
contemporaneously-issued birth certificate, which listed Mr. Solis – not Mr.
Boreland – as his father. A.R. 217-18. The birth certificate listing Mr. Boreland as
his father was issued five years after the relevant date, and accordingly, has no
bearing on his claim. A.R. 285-86. Given the limitations of the reissued
certificate, which was issued “only . . . for scholastic purposes,” and the fact that
Mr. Jaen was raised by his grandparents (rather than by Mr. Boreland) and was
given his biological father’s surname, none of the evidence casts doubt on the
status of Mr. Jaen as Mr. Solis’s acknowledged child at the time of his birth.
Mr. Jaen’s reliance on the Ninth Circuit’s decisions in Solis-Espinoza and
Scales is unpersuasive, because, under the circumstances of those cases, the non-
3
Notably, on multiple forms submitted to the government, Mr. Jaen stated that his
father is “Liberato Jean” or “Liberato Jean Solis,” and not Mr. Boreland. See A.R.
294, 562.
4
Furthermore, like the State Department’s guidance on paternity presumptions,
New York State’s presumption of paternity is overcome by the circumstances of
Mr. Jaen’s birth. See Commissioner of Social Services ex rel. N.Q. v. B.C., 147
A.D.3d 1, 6 (N.Y.A.D. 1 Dept., 2016) (noting that “New York courts have
continued to treat the presumption (of paternity)” as one that can be rebutted by
“clear and convincing evidence”) (internal citations omitted).
16
United States-citizen parent either had abandoned or was unknown to the petitioner
at birth, and, in both cases, the United States-citizen parent had raised petitioners
from birth. See Solis-Espinosa, 401 F.3d at 1091; Scales, 232 F.3d at 1162. In this
case, the identity of Mr. Jaen’s father at the time of his birth was never in dispute,
and Mr. Boreland did not hold himself out to be Mr. Jaen’s father until 1977, five
years after his birth.5 A.R. 285-86. For these reasons, any presumption of
paternity was overcome by Mr. Jaen’s concession and the birth certificate evidence
confirming that Mr. Solis is Mr. Jaen’s biological father. 6 See 7 FAM 1131.4-1(a),
(d); accord Crider v. Ashcroft, 74 F. App’x 729, 730 (9th Cir. 2003) (unpublished)
(holding that petitioner did not acquire United States citizenship under former
8 U.S.C. § 1401 because neither of his parents were United States citizens at the
time of his birth). Thus, the agency properly concluded that Petitioner failed to
establish by a preponderance of the evidence that he acquired United States-
5
Additionally, Mr. Jaen did not reside in Mr. Boreland’s custody until he came to
the United States at the age of sixteen in 1988. See A.R. 82-83.
6
In light of the clear guidance on the matter from USCIS and the State
Department, Respondent does not concede – and this circuit has not concluded –
that there is no requirement of a blood relationship even if the citizen parent is
involved in the petitioner’s upbringing from birth. However, given the factual
distinctions between this case and Scales and Solis-Espinoza, the Court need not
decide at this juncture whether a blood relationship is required.
17
citizenship at the time of his birth. The Court therefore should not disturb the
agency’s decision.
CONCLUSION
For the foregoing reasons, the Court should deny the petition for review.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
Civil Division
KEITH I. McMANUS
Assistant Director
/s/ Rachel L. Browning

RACHEL L. BROWNING
Trial Attorney
U.S. Department of Justice
Civil Division
Ben Franklin Station, P.O. Box 878
Washington, D.C. 20044-0878
(202) 532-4526
Rachel.L.Browning@usdoj.gov
Dated: December 18, 2017 Attorneys for Respondent
18
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), the attached answering brief
complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) in that the
brief is proportionately spaced using Times New Roman 14-point typeface and
contains 4077 words and 349 lines of text. Respondent used Microsoft Word to
prepare this brief. The undersigned certifies that the text of the electronic brief is
identical to the text in the paper copies filed with the Court.
Dated: December 18, 2017 /s/ Rachel Browning

RACHEL L. BROWNING
Trial Attorney
U.S. Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
(202) 532-4526
CERTIFICATE OF SERVICE
I hereby certify that, on December 18, 2017, I filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Second Circuit by
using the appellate CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
/s/ Rachel Browning

RACHEL BROWNING
Trial Attorney
U.S. Department of Justice, Civil Division
Ben Franklin Station P.O. Box 878
(202) 532-4526

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Case 17-1512, Document 110, 12/18/2017, 2196920, Page1 of 26

LEVY ALBERTO JAEN,

JEFFERSON B. SESSIONS III, United States Attorney General,

ON PETITION FOR REVIEW OF A FINAL ORDER

BRIEF FOR RESPONDENT

CHAD A. READLER RACHEL L. BROWNING

ATTORNEYS FOR RESPONDENT

STATEMENT REGARDING ORAL ARGUMENT

STATEMENT REGARDING ORAL ARGUMENT

COUNTERSTATEMENT OF THE ISSUE ..............................................................2

STATEMENT OF THE CASE ..................................................................................3

I. Background and Removal Proceedings. ...............................................3

II. The Immigration Judge’s Decision. ......................................................5

III. The Board’s Decision. ...........................................................................8

SUMMARY OF THE ARGUMENT ........................................................................9

I. Scope and Standard of Review............................................................10

II. The Agency Properly Denied Mr. Jaen’s Motion to Terminate

A. Burden of Proof for Citizenship Claims under 8 U.S.C.

B. Legal Standards for Acquiring Citizenship at Birth. ................12

C. Mr. Jaen Did Not Acquire United States Citizenship at

Commissioner of Social Services ex rel. N.Q. v. B.C.,

Gupta v. Att’y Gen’l,

8 U.S.C. § 1227(a)(1)(B) ...........................................................................................4

8 U.S.C. § 1252(a)(1) .................................................................................................2

8 U.S.C. § 1252(b)(5)(A) .............................................................................. 2, 10, 11

8 U.S.C. § 1252(b)(5)(B) .........................................................................................11

8 U.S.C. § 1401 ........................................................................................................17

8 U.S.C. § 1401(a)(7) ................................................................................... 5, passim

8 U.S.C. § 1401(g)-(h) ...............................................................................................5

8 U.S.C. § 1432(a) (1996) ........................................................................................13

NYPL § 265.01(b)(1) .................................................................................................3

8 C.F.R. § 1003.1(b)(3) ..............................................................................................2

IN THE UNITED STATES COURT OF APPEALS

LEVY ALBERTO JAEN,

JEFFERSON B. SESSIONS III, United States Attorney General,

ON PETITION FOR REVIEW OF A FINAL ORDER OF

BRIEF FOR RESPONDENT

This is an immigration case in which Petitioner Levy Alberto Jaen (“Mr.

Appeals (“Board”) on May 2, 2017. Certified Administrative Record (“A.R.”) 3-5.

Judge’s decision denying his motion to terminate removal proceedings based on

The Board’s jurisdiction arose under 8 C.F.R. § 1003.1(b)(3), which grants it

appellate jurisdiction over decisions of immigration judges in removal

This Court’s jurisdiction arises under 8 U.S.C. § 1252(a)(1), which confers

issue of material fact about the petitioner’s nationality is presented.” 8 U.S.C.

decision. 8 U.S.C. § 1252(b)(1). Venue is proper because the proceedings before

Second Circuit’s jurisdiction. See 8 U.S.C. § 1252(b)(2).

COUNTERSTATEMENT OF THE ISSUE

STATEMENT OF THE CASE

I. Background and Removal Proceedings.

States on May 8, 1988, as a nonimmigrant visitor with authorization to remain until

criminal possession of a controlled substance (cocaine) in the fourth degree, in

September 22, 2014, he was convicted of criminal possession of a controlled

substance (heroin) in the fourth degree, in violation of NYPL § 220.09(1), and

criminal possession of a firearm/weapon, in violation of NYPL § 265.01(b)(1).

A.R. 651, 680.

On April 17, 2015, the Department of Homeland Security (“DHS”)

commenced removal proceedings against Mr. Jaen by filing a Notice to Appear

(“NTA”) in immigration court, charging him with removability pursuant to

8 U.S.C. § 1227(a)(1)(B), as an alien who, after admission as a nonimmigrant, had

§ 1227(a)(2)(B)(i), as an alien convicted of a crime related to a controlled

substance offense. A.R. 678-80.

On September 23, 2015, after receiving two continuances from the

Immigration Judge to find an attorney, Mr. Jaen appeared in removal proceedings

in Napanoch, New York, where he initially admitted the allegations contained in