Congratulations to Amy Meselson for A Brilliant Victory Before the Second Circuit
TUESDAY, DECEMBER 07, 2010

Congratulations to Amy Meselson and the entire Immigration Law Unit for obtaining a victory before the Second Circuit which involved the case of a young immigrant, who was able to prove he became a United States citizen 12 hours shy of his 18th birthday.

Ramon Durante-Ceri was facing deportation. Amy Meselson successfully argued before the Second Circuit that Durante-Ceri's mother was naturalized on the morning of June 14, 1991, 364 days and 12 hours before he became 18 years old.

"We are pleased the court correctly understood that United States citizenship is a precious right that may not be denied based on legal fictions and administrative convenience," Amy Meselson told the New York Law Journal. " Based on longstanding interpretations of law, the Court correctly held that Petitioner Duarte may go back to the district court to prove he had not reached 18 years of age when his mother naturalized, and thus is a United States citizen."

The New York Law Journal
Circuit Splits on Meaning of 'Under Age of 18' in Deportation Matter
By Mark Hamblett
12-07-2010

In a ruling that turned on the definition of "under the age of 18," a federal appeals court agreed that Ramon Duarte-Ceri, who is facing deportation, had a good argument that he was indeed a U.S. citizen because he was 12 hours shy of his 18th birthday on the day his mother was naturalized as a citizen in 1991.

Judges Peter Hall and Denny Chin of the U.S. Court of Appeals for the Second Circuit sent the case back to a district judge to verify Mr. Duarte-Ceri's claim that his mother was naturalized in the morning and he that he was born at night, which would make him 17 years, 364 days and 12 hours old when she took the naturalization oath on June 14, 1991.

The decision in Duarte-Ceri v. Holder, 08-6128-ag, drew a strong dissent from Judge Debra Ann Livingston, who said the majority took what should be a "straightforward" case and delivered an "utterly implausible reading of the statute."

The statute at issue is the former §321(a) of the Immigration and Nationality Act, 8 U.S.C. §1432(a), which grants derivative citizenship to certain children if their parents are naturalized while they are "under the age of eighteen years." The language has not changed under revisions to the law in 2000.

Mr. Duarte-Ceri was born in the Dominican Republic on June 14, 1973. He claims he was born around 9 p.m. He was admitted as a lawful permanent resident of the United States at the age of 8.

Mr. Duarte-Ceri was sentenced as a youthful offender in 1990 following an assault conviction, pleaded guilty in 1991 to possessing stolen property and, in 1994, pleaded guilty to attempted sale of a controlled substance.

Because of his criminal history, an immigration judge ordered Mr. Duarte-Ceri deported in 1997. He then began an extended effort to remain in the country. That effort included an application for citizenship, a habeas corpus petition and several motions to reopen his case before the Board of Immigration Appeals.

His case before the Second Circuit was argued on Jan. 10, 2010, where the first issue before the court concerned jurisdiction.

Judge Chin wrote that the Board of Immigration Appeals' refusal to reopen removal proceedings is discretionary and normally not reviewable. However, he said, there was no jurisdictional problem here "because the Executive Branch has no authority to remove a citizen."

Judge Chin said the phrase "under the age of eighteen" can be read two ways: It could mean either a person who has reached the 18th anniversary of their birth or, "On the other hand it could refer to an applicant who has not yet lived in the world for 18 years."

The majority opted for the latter meaning.

Under the Board of Immigration Appeals' decision, Judge Chin said, Mr. Duarte-Ceri "would be deported only because of the application of a legal fiction, that he turned 18 years of age at the stroke of midnight on the 18th anniversary of his birth."

He cited the U.S. Supreme Court in Town of Louisville v. Portsmouth Sav. Bank, 104 U.S. 469 (1881), where the Court said "whenever it becomes important to the ends of justice…the law will look into fractions of a day, as readily as into the fractions of any other unit of time."

Judge Chin said, "The legal fiction that a day is indivisible is a rule of convenience that is satisfactory only as long as it does not operate to destroy an important right."

Here, he said, "it is important to the ends of justice to parse the day into hours for 'the most precious right' of citizenship is at stake."

Judge Chin said Mr. Duarte-Ceri "stands to suffer a great loss, predicated on a rule of convenience," for "although he grew up in the United States and his mother, brother and children are all U.S. citizens, he will be separated from them."

Having determined that the timing of his birth is relevant, the circuit transferred the case to the Western District of New York for a new hearing on Mr. Duarte-Ceri's nationality claim. In her dissent, Judge Livingston said, "In interpreting a statute, we give its terms, read in their appropriate context, their ordinary, common meaning and when the text, thus read, provides an answer, our work is complete."

The phrase "under the age of eighteen" is commonly understood to mean "before one's 18th birthday," she said, and Mr. Duarte-Ceri was 18 years old on the morning of June 14, 1991 "not only for the purposes of derivative citizenship, but for every other purpose recognized by law, from momentous to trivial."

In New York, she said "a person who has turned 18—from the very first minute of that significant birthday—can be employed serving alcoholic beverages, get married without his parents' consent, work as a teacher in a public school, enter a nude dancing establishment, serve on a jury, operate a powerboat unaccompanied in New York waters, be sold 'dangerous fireworks,' apply for any class of adult drivers' license, purchase state lottery tickets and he can no longer be claimed as a dependent child for purposes of family assistance."

Amy Meselson of the Legal Aid Society argued for Mr. Duarte-Ceri.

Yamileth Handuber of the U.S. Department of Justice represented the government.