Case: 12-3670     Document: 003111083937       Page: 1   Date Filed: 11/20/2012                         No. 12-3670_______...
Case: 12-3670          Document: 003111083937                 Page: 2         Date Filed: 11/20/2012                      ...
Case: 12-3670          Document: 003111083937                 Page: 3        Date Filed: 11/20/2012                       ...
Case: 12-3670           Document: 003111083937                   Page: 4         Date Filed: 11/20/2012Morgan v. Att’y Gen...
Case: 12-3670           Document: 003111083937                   Page: 5         Date Filed: 11/20/2012                   ...
Case: 12-3670    Document: 003111083937       Page: 6    Date Filed: 11/20/2012                   STATEMENT OF JURISDICTIO...
Case: 12-3670    Document: 003111083937        Page: 7    Date Filed: 11/20/2012naturalization indicates she was married a...
Case: 12-3670    Document: 003111083937       Page: 8    Date Filed: 11/20/2012naturalization also notes that, at the time...
Case: 12-3670    Document: 003111083937      Page: 9     Date Filed: 11/20/2012his second application, Edwards noted that ...
Case: 12-3670   Document: 003111083937      Page: 10     Date Filed: 11/20/20128 U.S.C. § 1432(a) (1990). USCIS determined...
Case: 12-3670   Document: 003111083937        Page: 11    Date Filed: 11/20/2012affirmed. App. p. 41, 111-113. Edwards the...
Case: 12-3670   Document: 003111083937        Page: 12    Date Filed: 11/20/2012held that “Edwards’ passport is sufficient...
Case: 12-3670     Document: 003111083937    Page: 13     Date Filed: 11/20/2012App. p. 103-108. Edwards appealed, and the ...
Case: 12-3670    Document: 003111083937       Page: 14     Date Filed: 11/20/2012                    SUMMARY OF THE ARGUME...
Case: 12-3670   Document: 003111083937       Page: 15     Date Filed: 11/20/2012                                ARGUMENTI....
Case: 12-3670    Document: 003111083937       Page: 16     Date Filed: 11/20/2012Brownell, 135 F. Supp. 470, 473 (D.N.J. 1...
Case: 12-3670    Document: 003111083937        Page: 17     Date Filed: 11/20/2012evidence. Id. In fact, the district cour...
Case: 12-3670    Document: 003111083937       Page: 18     Date Filed: 11/20/2012district court did not consider this argu...
Case: 12-3670    Document: 003111083937        Page: 19     Date Filed: 11/20/2012II.   The Government Presented Clear, Un...
Case: 12-3670     Document: 003111083937       Page: 20     Date Filed: 11/20/2012evidence that Edwards is not a United St...
Case: 12-3670    Document: 003111083937        Page: 21     Date Filed: 11/20/2012his father. 5 App. p. 124-26. The only i...
Case: 12-3670    Document: 003111083937        Page: 22     Date Filed: 11/20/2012duty. See, e.g., Brissett v. Ashcroft, 3...
Case: 12-3670   Document: 003111083937        Page: 23    Date Filed: 11/20/2012convincing evidence. This Court should, th...
Case: 12-3670     Document: 003111083937   Page: 24    Date Filed: 11/20/2012with instructions to consider whether the Gov...
Case: 12-3670    Document: 003111083937        Page: 25     Date Filed: 11/20/2012                  CERTIFICATION OF COMPL...
Case: 12-3670   Document: 003111083937      Page: 26    Date Filed: 11/20/2012                     CERTIFICATE OF SERVICE ...
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USCIS Brief to Gilberto Edwards (3rd Cir. 11-20-12) citizenship case

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USCIS Brief to Gilberto Edwards (3rd Cir. 11-20-12) citizenship case

  1. 1. Case: 12-3670 Document: 003111083937 Page: 1 Date Filed: 11/20/2012 No. 12-3670_____________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT_____________________________________________________________ Gilberto Ernesto EDWARDS, Appellee, v. Tony BRYSON, District Director, Philadelphia, U.S. Citizenship and Immigration Services, et al, Appellants._____________________________________________________________ON APPEAL FROM A FINAL ORDER OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA_____________________________________________________________ APPELLANTS’ OPENING BRIEF_____________________________________________________________ZANE DAVID MEMEGER STUART DELERYUnited States Attorney Principle Deputy Assistant Attorney GeneralVERONICA J. FINKELSTEIN JEFFREY S. ROBINSAssistant U.S. Attorney Assistant DirectorU.S. Attorney’s Office Office of Immigration Litigation615 Chestnut Street, Suite 1250Philadelphia, PA 19106 BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Attorneys for Appellants
  2. 2. Case: 12-3670 Document: 003111083937 Page: 2 Date Filed: 11/20/2012 TABLE OF CONTENTSSTATEMENT OF JURISDICTION .............................................................. 1STATEMENT OF THE ISSUES ................................................................... 1STATEMENT OF FACTS ............................................................................. 2STATEMENT OF THE CASE ...................................................................... 7RELATED CASES AND PROCEEDINGS .................................................. 8STANDARD OF REVIEW ............................................................................ 8SUMMARY OF THE ARGUMENT ............................................................. 9ARGUMENT ................................................................................................ 10 I. The District Court Erred By Failing To Consider The Government’s Rebuttal Evidence That Edwards Is Not A United States Citizen. ................................................ 10 II. The Government Presented Clear, Unequivocal, And Convincing Evidence That Edwards Is Not A United States Citizen. ............................................................... 14CONCLUSION ............................................................................................. 18 i
  3. 3. Case: 12-3670 Document: 003111083937 Page: 3 Date Filed: 11/20/2012 TABLE OF AUTHORITIES Federal CasesAbreu-Mejia v. Att’y Gen. of U.S., 393 F. App’x 918 (3d Cir. 2010) ............................................................... 12Biskupski v. Att’y Gen., 503 F.3d 274 (3d Cir. 2007) ........................................................................ 4Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004) ...................................................................... 17Claver v. U.S. Att’y Gen., 245 F. App’x 904 (11th Cir. 2007)............................................................ 16Delmore v. Brownell, 135 F. Supp. 470 (D.N.J. 1955) .................................................... 10, 11, 13Delmore v. Brownell, 236 F.2d 598 (3d Cir. 1956) ................................................................ 11, 13Fedorenko v. United States, 449 U.S. 490 (1981) ............................................................................ 12, 15Forrester v. Att’y Gen. of U.S., 403 F. App’x 744 (3d Cir. 2010) ............................................................... 16Hudson United Bank v. LiTenda Mort. Corp., 142 F.3d 151 (3d Cir. 1998) ...................................................................... 14INS v. Pangilinan, 486 U.S. 875 (1988) .................................................................................. 12Lawrence v. City of Philadelphia, 527 F.3d 299 (3d Cir. 2008) .................................................................. 8, 15Miller v. Albright, 523 U.S. 420 (1998) ............................................................................ 10, 12 ii
  4. 4. Case: 12-3670 Document: 003111083937 Page: 4 Date Filed: 11/20/2012Morgan v. Att’y Gen. of U.S., 432 F.3d 226 (3d Cir. 2005) ................................................................ 16, 17Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004) ...................................................................... 14United States v. Breyer, 41 F.3d 884 (3d Cir. 1994) ........................................................................ 10United States v. Edwards, No. 1:00-cr-1334 (E.D.N.Y.) ...................................................................... 3United States v. Edwards, 342 F.3d 168 (2d Cir. 2003) ........................................................................ 3United States v. Wong Kim Ark, 169 U.S. 649 (1898) .................................................................................. 10 Federal Statutes8 U.S.C. § 1432 ............................................................................................... 48 U.S.C. § 1432(a) .......................................................................... 4, 5, 16, 178 U.S.C. § 1432(a)(3)......................................................................... 5, passim8 U.S.C. § 1452(a) ........................................................................................ 108 U.S.C. § 1503 ....................................................................................... 1, 6, 88 U.S.C. § 1503(a) ........................................................................................ 1028 U.S.C. § 1291 ............................................................................................. 1 Child Citizenship Act of 2000Pub. L. No. 106-395, Stat. 1631 ..................................................................... 4 iii
  5. 5. Case: 12-3670 Document: 003111083937 Page: 5 Date Filed: 11/20/2012 Federal Regulations8 C.F.R. § 103.3(a) ....................................................................................... 108 C.F.R. § 341.1 ............................................................................................ 108 C.F.R. § 341.6 ............................................................................................ 10 iv
  6. 6. Case: 12-3670 Document: 003111083937 Page: 6 Date Filed: 11/20/2012 STATEMENT OF JURISDICTION The district court exercised jurisdiction to review Plaintiff/AppelleeGilberto Ernesto Edwards’ (“Edwards”) amended complaint under 8 U.S.C.§ 1503. The district court rendered a final decision on July 26, 2012. App.p. 6. Defendants/Appellants (“the Government”) filed a timely notice ofappeal under Federal Rule of Appellate Procedure 4(a)(1)(B) on September20, 2012. App. p. 1. This Court has jurisdiction to review the districtcourt’s final decision under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES1. Once a putative citizen presents a prima facie claim to United Statescitizenship, the burden shifts to the Government to rebut such claim withclear, unequivocal, and convincing evidence. Here, the district court shiftedthe burden to the Government to rebut Edwards’ prima facie claim tocitizenship, but it stopped there. It did not consider Government’s primaryrebuttal evidence. Did the district court err by refusing to consider theGovernment’s rebuttal evidence?2. Edwards claims that he derived United States citizenship through hismother’s naturalization alone because, at the time his mother naturalized, hisparents were “legally separated.” But when Edwards’ mother naturalized,she was not “legally separated” from Edwards’ father: her certificate of 1
  7. 7. Case: 12-3670 Document: 003111083937 Page: 7 Date Filed: 11/20/2012naturalization indicates she was married and she did not divorce Edwards’father until two years later. Did Edwards derive citizenship through hismother’s naturalization? STATEMENT OF FACTS Gilberto Ernesto Edwards, a foreign-born, putative United Statescitizen, immigrated to the United States as a teenager. App. p. 39. Edwardswas born in Panama in 1965. Id. At the time of his birth, his parents weremarried. Id. In 1977, he immigrated to the United States as a lawfulpermanent resident. Id. On May 5, 1978, Edwards’ mother petitioned the New York FamilyCourt for financial support from Edwards’ father. App. p. 39-40. Thepetition lists different addresses for Edwards’ parents. App. p. 40. Thefamily court granted the petition and entered a temporary (and laterpermanent) order of support, requiring Edwards’ father to provide Edwards’mother with financial support. Id. Edwards’ parents then naturalized in the United States. Id. Hismother naturalized in 1982, when Edwards was seventeen. Id. Hercertificate of naturalization notes that, at the time she naturalized, she wasmarried. App. p. 57. Edwards turned 18 in 1983. App. p. 40. Edwards’father then naturalized in 1984. App. p. 40. Edwards’ father’s certificate of 2
  8. 8. Case: 12-3670 Document: 003111083937 Page: 8 Date Filed: 11/20/2012naturalization also notes that, at the time he naturalized, he was married.App. p. 59. In 1985, the Family Court of New York entered a divorcedecree for Edwards’ parents. App. p. 40, 61-62. Six years later, Edwards applied for a United States passport. App. p.40, 64. To support his application, Edwards submitted his birth certificateand his parents’ naturalization certificates. Id. The Department of Statereviewed and returned these documents, and on December 16, 1991, theDepartment of State issued Edwards a United States Passport with anexpiration date of December 15, 2001. App. p. 40, 66. Edwards was then indicted and convicted of drug trafficking. Seegenerally United States v. Edwards, No. 1:00-cr-1334 (E.D.N.Y.). OnDecember 27, 2000, Edwards was indicted for importing cocaine. App. p.40. Edwards went to trial, and in early 2001, a jury convicted him ofconspiring to import greater than five kilograms of cocaine into the UnitedStates. See United States v. Edwards, 342 F.3d 168, 172 (2d Cir. 2003). Hewas sentenced to 235 months imprisonment. Id. After he was indicted, but before he was convicted, Edwards filed anN-600 Application for Certificate of Citizenship with the legacyImmigration and Naturalization Service (“INS”). App. p. 40, 81-83. Heapplied for a certificate of citizenship again in 2008. App. p. 41, 85-91. In 3
  9. 9. Case: 12-3670 Document: 003111083937 Page: 9 Date Filed: 11/20/2012his second application, Edwards noted that he received a passport in “1995or 1996,” though he did not attach a copy of his passport to his application.App. p. 87. United States Citizenship and Immigration Services (“USCIS”) 1denied both applications. App. p. 41, 93-95. USCIS first determined that,under 8 U.S.C. § 1432(a) (1990), 2 Edwards did not derive citizenship fromhis parents. App. p. 93-95. Section 1432(a) states in relevant part: (a) A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions . . . (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or . . . .1 On March 1, 2003, Congress transferred INS’s relevant functions toUSCIS. See Biskupski v. Att’y Gen., 503 F.3d 274, 277 n.5 (3d Cir. 2007).2 Congress repealed section 1432 by enacting the Child Citizenship Act of2000, Pub. L. No. 106-395, 114 Stat. 1631, effective February 27, 2001. 4
  10. 10. Case: 12-3670 Document: 003111083937 Page: 10 Date Filed: 11/20/20128 U.S.C. § 1432(a) (1990). USCIS determined that Edwards did not deriveUnited States citizenship under section 1432(a)(3) because, at the time of hismother’s naturalization, Edwards’ parents were not “legally separated.”App. p. 95. Then USCIS determined that Edwards’ passport was notevidence of citizenship because it was expired. Id. Edwards filed anadministrative appeal. App. p. 41. The Administrative Appeals Office (“AAO”) affirmed in part andremanded in part. App. p. 41, 98-101. It affirmed USCIS’s determinationthat Edwards did not derive citizenship through his mother’s naturalization.App. p. 99-100. But it remanded Edwards’ application to USCIS withinstructions to allow the Department of State to review Edwards’ passportand determine whether to revoke it. App. p. 100-101. After remand, USCIS again denied Edwards’ applications. App.p. 41, 103-108. USCIS again explained that Edwards did not derivecitizenship through his mother’s naturalization. App. p. 103-107. ThenUSCIS explained that, after allowing the State Department to reviewEdwards’ passport, the State Department reported that it could not revoke orinvalidate an expired passport because an expired passport is already invalid.App. p. 107. Edwards again appealed. App. p. 41. This time the AAO 5
  11. 11. Case: 12-3670 Document: 003111083937 Page: 11 Date Filed: 11/20/2012affirmed. App. p. 41, 111-113. Edwards then sought judicial review of hisclaim to United States citizenship.3 App. p. 15. After cross-motions for summary judgment, the district court declaredEdwards a United States citizen. App. p. 6-14. The district courtdetermined that, at a minimum, Edwards’ expired passport constituted aprima facie showing of United States citizenship. App. p. 10-12. Based onthis finding, the district court shifted the burden to the government to rebutEdwards’ prima facie showing by clear, unequivocal, and convincingevidence. Id. Without analysis, the district court determined that theGovernment had failed to carry this burden. App. p. 12-13. The districtcourt then declared Edwards a citizen. Id. In a lengthy footnote, the district court analyzed Edwards’ claim toderivative citizenship. App. p. 13. The district court first explainedEdwards’ claim and the Government’s contrary argument. Id. But thedistrict court decided it need not reach this argument because it had already3 Edwards originally filed his complaint as a mandamus action seeking anorder compelling USCIS to render a decision after the AAO’s remand. App.p. 16. Shortly thereafter, USCIS rendered its second denial. App. p. 41,103-108. The parties then allowed for extensions of time to allow the AAOappeal to be completed, and on October 11, 2011, Edwards filed an amendedcomplaint seeking judicial review of his claim to citizenship. App. p. 17-18.After a status conference in December 2011, the parties agreed to file a setof undisputed facts and proceed with cross-motions for summary judgmenton Edwards’ claim under 8 U.S.C. § 1503. App. p. 18-19. Edwardswithdrew all other collateral claims in his amended complaint. App. p. 19. 6
  12. 12. Case: 12-3670 Document: 003111083937 Page: 12 Date Filed: 11/20/2012held that “Edwards’ passport is sufficient to establish by a preponderance ofevidence that he is a U.S. citizen.” Id. Nevertheless the district court citedthe relevant authority and opined that “it is unlikely that Edwards couldsucceed with” his claim to derivative citizenship. Id. This appeal followed. STATEMENT OF THE CASE Edwards filed N-600 Applications for Certificates of Citizenship in2001 and 2008 with INS and USCIS, respectively. App. p. 40-41, 81-91.USCIS denied both applications in 2009, reasoning that Edwards did notderive United States citizenship through his mother’s naturalization and hisexpired passport did not constitute evidence of citizenship. App. p. 41, 93-95. Edwards appealed. App. p. 41. The AAO affirmed USCIS’s decisionthat Edwards did not derive United States citizenship, but it remanded thecase back to USCIS with instructions to allow the Department of State toreview and potentially revoke Edwards’ passport. App. p. 41, 98-104. After two years, Edwards filed suit in the Eastern District ofPennsylvania seeking an order to compel USCIS to render a remanddecision. App. p. 16. USCIS then denied Edwards’ application again. App.p. 41, 103-108. USCIS decided again that Edwards did not derive UnitedStates citizenship, and it noted that the State Department decided that,because Edwards’ passport was expired, it could not revoke his passport. 7
  13. 13. Case: 12-3670 Document: 003111083937 Page: 13 Date Filed: 11/20/2012App. p. 103-108. Edwards appealed, and the AAO affirmed. App. p. 41,111-113. On October 11, 2011, Edwards filed an amended complaint seeking adeclaration of citizenship under 8 U.S.C. § 1503. App. p. 18, 23-38. Theparties filed undisputed facts and cross-motions for summary judgment.App. p. 39-41, 114-127, 130-146. On July 26, 2012, the Court grantedEdwards’ motion for summary judgment and declared Edwards a UnitedStates citizen. App. p. 6-14. The Government filed its notice of appeal onSeptember 20, 2012. App. p. 1-3. RELATED CASES AND PROCEEDINGS There are no related cases or proceedings relevant to this appeal. STANDARD OF REVIEW This Court should review de novo the district court’s grant ofsummary judgment. Lawrence v. City of Philadelphia, 527 F.3d 299, 310(3d Cir. 2008). 8
  14. 14. Case: 12-3670 Document: 003111083937 Page: 14 Date Filed: 11/20/2012 SUMMARY OF THE ARGUMENT This Court should vacate the district court’s holding that theGovernment did not carry its rebuttal burden and vacate the district court’sdeclaration of citizenship because the district court failed to consider theGovernment’s rebuttal evidence that Edwards did not derive United Statescitizenship. Under 8 U.S.C. § 1503, once a putative citizen makes a primafacie claim to United States citizenship, the burden shifts to the governmentto rebut such claim. Here, the district court shifted the burden to theGovernment, but it did not consider its rebuttal evidence. And this error washarmful because it led to the court to declare Edwards a United States citizenwithout ensuring that he actually acquired United States citizenship. Further, this Court should hold that the Government presented clear,unequivocal, and convincing evidence that Edwards is not a United Statescitizen because he did not derive United States citizenship through hismother’s naturalization. Under the relevant law, Edwards could only deriveUnited States citizenship through his mother’s naturalization if his parentswere legally separated. However, at the time his mother naturalized,Edwards’ parents were not legally separated. Because this is a purely legalquestion based on undisputed facts, this Court can and should decide thisissue in the first instance on appeal. 9
  15. 15. Case: 12-3670 Document: 003111083937 Page: 15 Date Filed: 11/20/2012 ARGUMENTI. The District Court Erred By Failing To Consider The Government’s Rebuttal Evidence That Edwards Is Not A United States Citizen. The district court erred by failing to consider (or not reaching) theGovernment’s rebuttal evidence that Edwards is not a United States citizen.A putative, derivative citizen 4 — such as Edwards — may apply to USCISfor a Certificate of Citizenship. See 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. Ifdenied, the putative citizen may appeal to the AAO. 8 C.F.R. §§ 103.3(a),341.6. And if the denial is upheld, a putative citizen may then seek adeclaration of citizenship in a district court under 8 U.S.C. § 1503(a). 8U.S.C. § 1503(a); see United States v. Breyer, 41 F.3d 884, 891-92 (3d Cir.1994). Under section 1503(a), a putative citizen may seek a declaration ofUnited States citizenship. Id. Such suit is not limited to review of theadministrative decision or record; rather, it is a trial de novo. See Delmore v.4 United States citizenship is acquired exclusively through birth andnaturalization. Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting UnitedStates v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). Though the FourteenthAmendment grants citizenship to “all persons born . . . in the UnitedStates . . . subject to the jurisdiction thereof,” persons born outside of theUnited States acquire citizenship only as provided by law. Miller, 523 U.S.at 423. This latter citizenship — citizenship acquired by operation of law —is commonly referred to as “derivative citizenship.” See, e.g., United Statesv. Breyer, 41 F.3d 884, 891-93 (3d Cir. 1994). 10
  16. 16. Case: 12-3670 Document: 003111083937 Page: 16 Date Filed: 11/20/2012Brownell, 135 F. Supp. 470, 473 (D.N.J. 1955) (“Delmore I”); Delmore v.Brownell, 236 F.2d 598, 599 n.5 (3d Cir. 1956) (“Delmore II”). Plaintiff, of course, has the burden of proving his citizenship, but he need do this by no more than a preponderance of the evidence. While plaintiff carries the ordinary burden of proof, once he makes a prima facie case of citizenship the government’s rebuttal must be by clear, unequivocal and convincing evidence.Delmore I, 135 F. Supp. at 473. The government’s rebuttal burden is akin tothat which would “sustain a judgment of denaturalization.” Delmore II, 236F.2d at 600. Here, the district court erred by failing to consider (or not reaching)the Government’s rebuttal evidence — its argument that Edwards did notderive citizenship through his mother’s naturalization. The Governmentargued below that under applicable law — 8 U.S.C. § 1432(a)(3) (1990) —Edwards did not derive United States citizenship through his mother’snaturalization because, at the time she naturalized, she was not legallyseparated from Edwards’ father. App. p. 40, 57, 137-39. The Governmentaffirmatively moved for summary judgment on this issue, App. p. 137-39,and the district court recognized that the Government made this argument.App. p. 13 (“The Government contends that Edwards’ did not derive hiscitizenship through his mother’s naturalization because his parents were notlegally separated.”). But the district court did not consider it as rebuttal 11
  17. 17. Case: 12-3670 Document: 003111083937 Page: 17 Date Filed: 11/20/2012evidence. Id. In fact, the district court withheld judgment on this issuealtogether. Id. The district court failed to consider the Government’srebuttal evidence, and therefore, the district erred. Further, this error is harmful because, given the nature of theGovernment’s rebuttal evidence, the district court’s declaration ofcitizenship is constitutionally suspect. “Once it has been determined that aperson does not qualify for citizenship . . . the district court has no discretionto ignore the defect and grant citizenship.” Fedorenko v. United States, 449U.S. 490, 517 (1981) (internal citation and quotation marks omitted). Thisproscription emanates from Congress’s exclusive authority to establish auniform rule of naturalization. See Miller v. Albright, 523 U.S. 420, 456(1998) (Scalia, J., concurring). “[W]here an alien does not meet thestatutory requirements for citizenship, a court does not have authority toconfer citizenship through equitable means.” Abreu-Mejia v. Att’y Gen. ofU.S., 393 F. App’x 918, 920 (3d Cir. 2010) (citing INS v. Pangilinan, 486U.S. 875, 885 (1988)). Here, the Government’s rebuttal to Edwards’ prima facie claimconsisted of its legal argument (based on undisputed facts) that Edwards didnot satisfy the terms of 8 U.S.C. § 1432(a)(3) and, therefore, did not derivecitizenship through his mother’s naturalization. App. p. 137-39. Though the 12
  18. 18. Case: 12-3670 Document: 003111083937 Page: 18 Date Filed: 11/20/2012district court did not consider this argument in its decision making, it didnote that it was unlikely that Edwards satisfied the terms of 8 U.S.C.§ 1432(a)(3). App. p. 13. Nevertheless, the court declared Edwards aUnited States citizen. Id. It appears, therefore, that the district court grantedEdwards citizenship in spite of his failure to satisfy Congress’s terms ofacquiring citizenship. Had the district court considered and rejected theGovernment’s rebuttal evidence, this issue would have been avoided. But itdid not. And as a result, its declaration of citizenship is constitutionallysuspect. The district court did not complete the burden shifting analysis underDelmore I and Delmore II because it did not consider the Government’srebuttal evidence. As a result, the district court erred by holding that theGovernment did not meet its burden of proof. This Court should, therefore,vacate the district court’s holding that the Government did not carry itsburden and vacate the declaration of citizenship. 13
  19. 19. Case: 12-3670 Document: 003111083937 Page: 19 Date Filed: 11/20/2012II. The Government Presented Clear, Unequivocal, And Convincing Evidence That Edwards Is Not A United States Citizen. This Court can and should determine in the first instance that theGovernment carried its burden to rebut Edwards’ prima facie claim tocitizenship by clear, unequivocal, and convincing evidence because thedistrict court failed to reach a pure question of law based on undisputedfacts. “When a district court has failed to reach a question below thatbecomes critical when reviewed on appeal, an appellate court maysometimes resolve the issue on appeal rather than remand to the districtcourt.” Hudson United Bank v. LiTenda Mort. Corp., 142 F.3d 151, 159 (3dCir. 1998). It is appropriate for an appellate court to rule in the first instancewhere: the factual record is developed, the question to be decided is purelylegal, the appellate court is exercising plenary review, and resolution of theissue involves no discretion. Id.; see, e.g., Spruill v. Gillis, 372 F.3d 218,232 (3d Cir. 2004). Here, this Court should decide in the first instance whether theGovernment carried its burden to rebut Edwards’ prima facie claim toUnited States citizenship. First, the parties have already agreed to a set ofundisputed facts, and all of the relevant documents are part of the record.App. p. 39-41, 43-113. Second, the issue to be decided is purely legal:whether the Government proved by clear, unequivocal, and convincing 14
  20. 20. Case: 12-3670 Document: 003111083937 Page: 20 Date Filed: 11/20/2012evidence that Edwards is not a United States citizen because he did notderive citizenship through his mother’s naturalization. Third, this Court’sreview of the district court’s decision on summary judgment is plenary. SeeLawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). Finally,there is no room for discretion in the question to be decided. See Fedorenkov. United States, 449 U.S. 490, 517 (1981) (“Once it has been determinedthat a person does not qualify for citizenship . . . the district court has nodiscretion to ignore the defect and grant citizenship.”). Therefore, this Courtshould determine in the first instance whether the Government proved byclear, unequivocal, and convincing evidence that Edwards is not a UnitedStates citizen because he did not derive citizenship through his mother’snaturalization. Based on the undisputed facts, Edwards is not a United States citizenbecause he did not derive United States citizenship through his mother’snaturalization. Here, Edwards alleges only that he derived citizenship under1432(a)(3) through the naturalization of his mother who was his legalcustodian and who was, under the law of New York, legally separated from 15
  21. 21. Case: 12-3670 Document: 003111083937 Page: 21 Date Filed: 11/20/2012his father. 5 App. p. 124-26. The only issue in dispute here is whetherEdwards’ parents were legally separated. Though courts of appeals disagree about what is necessary todemonstrate “legal separation” for purposes of former section 1432(a)(3),see Claver v. U.S. Att’y Gen., 245 F. App’x 904, 906 (11th Cir. 2007)(discussing circuit split), this is not an open question in the Third Circuit:“We hold that a legal separation for purposes of § 1432(a) occurs only upona formal governmental action, such as a decree issued by a court ofcompetent jurisdiction that, under the laws of a state or nation havingjurisdiction over the marriage, alters the marital relationship of the parties.”Morgan v. Att’y Gen. of U.S., 432 F.3d 226, 234 (2005); see Forrester v.Att’y Gen. of U.S., 403 F. App’x 744 (3d Cir. 2010) (applying Morgan). Here, at the time Edwards’ mother naturalized, she was not legallyseparated from Edwards’ father. Edwards’ mother’s naturalizationcertificate avers that she was married at the time she naturalized, and theNew York Family Court entered a final divorce decree for Edwards’ parentsnearly three years after Edwards’ mother naturalized. App. p. 57, 61-62.Further, the New York Family Court’s 1978 support orders did not alterEdwards’ parents’ marital relationship; rather, such orders enforced a marital5 Edwards does not argue that his parents were legally separated underPanamanian law. App. p. 124-26. 16
  22. 22. Case: 12-3670 Document: 003111083937 Page: 22 Date Filed: 11/20/2012duty. See, e.g., Brissett v. Ashcroft, 363 F.3d 130, 134 (2d Cir. 2004).Under Morgan, the 1978 support orders are, therefore, not evidence of alegal separation. 432 F.3d at 234. Edwards, however, argues that, because the New York Family Courtwas on notice that Edwards’ parents were living at different addresses whenit entered the 1978 orders of support, those orders constitute a formal,governmental recognition of Edwards’ parents’ separation. App. p. 124-26.This Court should reject this argument. First, support orders do not alter the marital relationship, they enforcemarital obligations. Brissett, 363 F.3d at 134 (“The support order reaffirmed[the husband’s] marital duty to provide support to his family, but did notalter the relationship or rights of the parties in any significant way.”).Second, Morgan requires formal governmental action to establish a legalseparation, not simply a passive recognition of the fact of separation. 432F.3d at 234. Finally, section 1432(a) requires more than an informal orfactual separation; it requires “legal” separation. Id. For these reasons, Edwards did not derive United States citizenshipthrough his mother’s naturalization. Because Edwards never derived UnitedStates citizenship, the Government has presented sufficient evidence to rebutEdwards’ prima facie claim to citizenship by clear, unequivocal, and 17
  23. 23. Case: 12-3670 Document: 003111083937 Page: 23 Date Filed: 11/20/2012convincing evidence. This Court should, therefore, vacate the districtcourt’s holding that the Government did not carry its burden, vacate thedistrict court’s declaratory judgment, hold that the Government has provenby clear, unequivocal, and convincing evidence that Edwards is not a UnitedStates citizen, and dismiss this case with prejudice. In the alternative, this Court should vacate the district court’sdeclaratory judgment and its decision that the Government did not carry itsrebuttal burden, and remand this case to the district court with instructions toconsider whether the Government’s argument constitutes clear, unequivocal,and convincing evidence that Edwards is not a United States citizen. CONCLUSION For these reasons, this Court should vacate the district court’sdeclaratory judgment and its decision that the Government did not carry itsrebuttal burden, and it should affirmatively hold that the Governmentrebutted Edwards’ prima facie claim to United States citizenship by clear,unequivocal, and convincing evidence and dismiss Edwards’ amendedcomplaint with prejudice. Or in the alternative, this Court should vacate the district court’sdeclaratory judgment and its decision that the Government did not carry itsrebuttal burden, and this Court should remand this case to the district court 18
  24. 24. Case: 12-3670 Document: 003111083937 Page: 24 Date Filed: 11/20/2012with instructions to consider whether the Government’s argument constitutesclear, unequivocal, and convincing evidence that Edwards is not a UnitedStates citizen.Dated: November 20, 2012 Respectfully submitted,ZANE DAVID MEMEGER STUART F. DELERYU.S. Attorney Principle Deputy Assistant Attorney GeneralVERONICA J. FINKELSTEIN JEFFREY S. ROBINSAssistant U.S. Attorney Assistant DirectorU.S. Attorney’s Office Office of Immigration Litigation615 Chestnut Street, Suite 1250Philadelphia, PA 19106 s/Bradley B. BaniasP: (215) 861-8598 BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Bar: SC 76653 TELE: (202) 532-4809 FAX: (202) 305-7000 E-mail: Bradley.B.Banias@usdoj.gov Attorneys for Defendants 19
  25. 25. Case: 12-3670 Document: 003111083937 Page: 25 Date Filed: 11/20/2012 CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned herebycertifies that the attached brief of Appellees complies with the typeface, typestyles, and type-volume limitation of Fed. R. App. P. 32(a)(5), (6), and(7)(B) because the brief is proportionately spaced using Times New Roman14-point typeface and contains 4,159 words of text, excluding the parts ofthe brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief wasprepared using Microsoft Word 2010 in fourteen point “Times New Roman”font. The text of the electronic brief is identical to the text in the papercopies filed with the Court. The virus detection program, MicrosoftForefront Client Security version 1.5.1972.0, has been run on the file and noviruses were detected. s/Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of JusticeDated: November 20, 2012 20
  26. 26. Case: 12-3670 Document: 003111083937 Page: 26 Date Filed: 11/20/2012 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 20, 2012, I electronicallyfiled the foregoing document with the Clerk of the Court using CM/ECF.Also, on November 20, 2012, I sent a paper copy of Appellants’ OpeningBrief and Appendices to Plaintiff’s counsel at the address below via UnitedStates Postal Service mail in an envelope with pre-paid postage:Joe HohensteinOrlow, Kaplan & Hohenstein620 Chestnut Street, Suite 656Philadelphia, PA 19106-0000 s/ Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice 21

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