DUARTE-CERI v. HOLDER

<>, 908 N.E.2d at 465-68 (collecting numerous cases); State v. Wright, 24 Kan.App.2d 558, 948 P.2d 677, 680-83 (1997) (same); People v. Anderson, 108 Ill.App.3d 563, 64 Ill.Dec. 136, 439 N.E.2d 65, 71-72 (1982).

The lack of support for the majority's interpretation is unsurprising, as it is obviously contrary to the common understanding of the statutory text read as a whole. Assuming that the word "age" might in some unusual circumstances refer to the precise duration of time that has elapsed since the exact moment of a person's birth, the word cannot be so construed when it is used in the context of a phrase, "under the age," that is itself used in the context of a statute that attempts to draw a dividing line among people of different ages. And we are obligated to read the words of statutes not in artificial isolation, as the majority does, but in their proper context as part of the statute in which they are found. See United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); Pettus v. Morgenthau, 554 F.3d 293, 296-97 (2d Cir. 2009); see also John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2393 (2003) ("[T]he literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.").

The majority's opinion exemplifies the pitfalls of its unwise alternative interpretive approach. No reasonable reader would read the words of § 1432(a) to refer to a person's so-called "biological" age, Maj. Op. at 87-88, when it is absolutely clear from context that the statute (being a statute) refers to "age" in a traditional, legal sense — the same sense in which the phrases "under the age," "over the age," "reaches the age," and the like are always used when used in statutes. No reader of a typical underage drinking law thinks that it means that a person can buy alcohol on their twenty-first birthday only after the exact minute and hour at which they were born twenty-one years before. Cf. N.Y. Alco. Bev. Cont. Law § 65 ("No person shall sell, deliver or give away . . . any alcoholic beverages to . . . [a]ny person, actually or apparently, under the age of twenty-one years. . . ."). Nor would a reasonable reader of the Constitution think that if the polls happened to close before a person's birth hour when an election was held on his eighteenth birthday, that this person had no right to vote earlier in the day. Cf. U.S. Const. amend. XXVI, § 1 (guaranteeing the "right of citizens of the United States, who are eighteen years of age or older, to vote"). And yet the majority finds § 1432(a) susceptible to just such an unreasonable reading, contrary to any principle of statutory construction of which I am aware and, indeed, to common sense.

Relying principally on dicta from an 1881 Supreme Court opinion that did not involve age but rather the question of when a law should be deemed enacted, see Louisville v. Sav. Bank, 104 U.S. 469, 478, 26 L.Ed. 775 (1881), the majority does not attempt to limit its reasoning to the construction of statutes relating to citizenship, nor could it do so plausibly. As the majority writes, we may "parse the day into hours," in spite of clear and unambiguous statutory language suggesting we may not, whenever it is " important to the ends of justice." Maj. Op. at 89 (emphasis added). The "ends of justice" is a malleable standard at best, and one that a court is not empowered to employ to displace clear and unambiguous statutory language. Today the majority invokes this standard because "citizenship is at stake," id., but the majority's methodology simply cannot be limited to that context. Why shouldn't a statute conferring exclusive jurisdiction on a juvenile court over all persons whose offenses were committed when they were "under eighteen years of age" be construed to cover a defendant who committed criminal acts prior to his exact birth hour on his birthday? See, e.g., Yarger, 908 N.E.2d at 463. After all, prosecution as an adult can have "harsh consequences," Ex Parte Petty, 548 So.2d 636, 636 (Ala. 1989) (quoting Baldwin v. State, 456 So.2d 117, 123 (Ala.Crim.App. 1983)), so perhaps the "ends of justice" might favor parsing the day into hours in such a case. But perhaps, on the other hand, the defendant's circumstances and the heinousness of the crime suggest he should face responsibility for his acts as an adult, so parsing would not serve the "ends of justice." The result is unknowable applying the majority's standard, a state of affairs that the clear language of § 1432(a) and the many other statutes using this or similar phrasing cannot support.

The majority seeks support from the fact that bankruptcy courts "have long considered fractions of days to determine certain rights," Maj. Op. at 88-89, but the cases on which it relies are simply inapt. Bankruptcy courts parse the day into hours because they are applying provisions of the Bankruptcy Code that hinge legal consequences on the order in which specified events occur — whether, for instance, an expense is incurred before or after the commencement of a case — and these provisions require the bankruptcy court to determine the order. See, e.g., Vanco Trading, Inc. v. Monheit (In re K Chem. Corp.), 188 B.R. 89, 94-96 (Bankr.D.Conn. 1995), cited in Maj. Op. at 89 n. 3 (adopting a "fractionalization" approach to conclude that a debt incurred by the debtor on the same day that its petition was filed but before the exact time of filing was not an administrative expense afforded priority under 11 U.S.C. § 503(b)(1)(A), because by the terms of the Code such expenses must have been incurred "after the commencement of the case," id. at 94 (quoting § 503(b)(1)(A))). These provisions are very different from statutes such as § 1432(a) that clearly and unambiguously set forth age distinctions using commonly employed phrases.

The majority thus misses the point of my argument. I do not contend that courts will be unable to apply the majority's chosen "standard," but that the language of § 1432(a) cannot reasonably be interpreted to permit courts to engage in the indeterminate inquiry the majority undertakes. Contra Maj. Op. at 90.

The majority's only response to these arguments is that the commonly understood meaning of "under the age of eighteen" is a "linguistic imprecision" and "rule of convenience" that should not be followed in this case. Maj. Op. at 89-90. This is so, suggests the majority, because while in most contexts it makes no difference precisely when one reaches the "age of eighteen," in this case it does. Id. at 89. But I know of no principle of statutory construction suggesting that we may depart from the common understanding of statutory terms — statutory terms that are clear and unambiguous — simply because we are confronted with a case in which we believe it is important to do so. Respectfully, to apply such a principle, as the majority does, is not an act of statutory construction but judicial draftsmanship. And it flies in the face of the Supreme Court's admonition that "[a]n alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare." INS v. Pangilinan, 486 U.S. 875, 884, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (quoting United States v. Ginsberg, 243 U.S. 472, 474, 37 S.Ct. 422, 61 L.Ed. 853 (1917)) (internal quotation marks omitted).

Even if I were to indulge the majority's view that § 1432(a) is susceptible to two readings — and it is not — consideration of the provision in light of related sections of the Immigration and Nationality Act ("INA") clearly shows that the majority has rejected the correct reading. Prior to 1952, under the Nationality Act of 1940, a child born outside of the United States to alien parents acquired citizenship derivatively if the child's parents (or a single parent if the other parent was deceased or did not have custody of the child following a separation) were naturalized "while such child [was] under the age of eighteen years." Nationality Act of 1940, Pub.L. No. 76-853, § 314, 54 Stat. 1137, 1145-46. In 1952, Congress repealed the relevant portions of the Nationality Act and enacted a new version of the derivative citizenship statute which lowered the relevant age to sixteen years. See Immigration and Nationality Act, Pub.L. No. 82-414, § 321(a), 66 Stat. 163, 245 (1952) ("A child born outside of the United States of alien parents . . . becomes a citizen . . . upon the fulfillment of [various conditions, including the naturalization of the relevant parent] while such child is under the age of sixteen years. . . ."). As we noted in Langhorne v. Askcroft, 377 F.3d 175 (2d Cir. 2004), the change created a gap between the age at which a person could acquire citizenship derivatively and the age at which a person could apply for citizenship on his own:

Significantly, Section 321(a) [§ 1432(a)] reduced the age at which a child could acquire derivative citizenship from eighteen (under the 1940 Act) to sixteen. . . . This change was problematic, however, for the reason noted by the Attorney General in a 1978 letter to the Chair of the House Judiciary Committee:

Currently, a person is not eligible to file a petition for naturalization in his own behalf under [ 8 U.S.C. § 1445] until reaching the age of 18. Thus, there is a 2-year period during which a child is not able to derive citizenship by reason of his parents' naturalization, but is not able to file his own petition for naturalization either. The only procedure available during this period is for the parent or parents to file a formal petition for the child's naturalization. . . . This procedure is both cumbersome and unnecessary. Young people between the age of 16 and 18 should be able to derive citizenship automatically. . . .

H.R. Rep. No. 95-1301, reprinted in 1978 U.S.C.CAN. 2301, 2309-10. Evidently to meet this concern and correct an unintended consequence of the 1952 formulation, a 1978 amendment changed the age requirement in Section 321(a) from sixteen to eighteen. Act of Oct. 5, 1978, Pub.L. 95-417, §§ 495, 92 Stat. 917.

Langhorne, 377 F.3d at 181 (citations and alterations omitted).

Thus, the majority is correct that Congress amended the 1952 version of the derivative citizenship statute in 1978, enacting the version at issue here, with the "underlying intention" of allowing children to acquire citizenship derivatively from their parents, and thereby keep together the family unit. Maj. Op. at 90. But it did so only to ensure that children might acquire derivative citizenship until they were of the age at which they could file petitions on their own behalf. See 8 U.S.C. § 1445(b) ("No person shall file a valid application for naturalization unless he shall have attained the age of eighteen years."). Because the natural meaning of the requirement in § 1445(b) that a petitioner must have "attained the age of eighteen years" is that the petitioner must have turned eighteen on the date the petition is filed, cf. Commonwealth v. A Juvenile, 406 Mass. 31, 545 N.E.2d 1164, 1164-65 n. 2 (1989) (construing statute refer-ring to "children who attain their seventeenth birthday" as covering one who "attains the age of seventeen"), it stands to reason that the language " under the age of eighteen years" in § 1432(a) should be construed as going up to the day before a petitioner's rights under § 1445(b) to file a petition on his own behalf attach.

One wonders how the majority would interpret § 1445(b) in light of its holding today. Both § 1445(b) and § 1432(a) turn on when the person in question becomes eighteen years old. Cf. Langhorne, 377 F.3d at 181 ("[T]he overarching statutory scheme that was in place . . . was clearly keyed to the age of eighteen."). If the derivative citizenship statute means that Duarte was still "under the age of eighteen" until the evening of June 14, 1991, presumably he had not " attained the age of eighteen" until that time. Thus, if the majority stands by its methodology, it must conclude that had Duarte attempted to file a petition for naturalization on his own behalf on June 14, 1991, he should have been turned away under § 1445(b) until after the hour on which he was born. With respect, this is what comes from using isolated fragments of legislative history to vary the clear meaning of an unambiguous statute. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ("[T]he authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms." (emphasis added)).

The majority next purports to find support in the supposed difference between § 1432(a) and statutes that refer specifically to "birthdays," such as 18 U.S.C. § 5031, setting forth the federal definition of a juvenile. Maj. Op. at 90; see 18 U.S.C. § 5031 ("[A] `juvenile' is a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under this chapter for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday. . . ."). This support, however, is any-thing but substantial. For the reasons discussed above, any reasonable reader, keeping in mind the statutes' contexts and Congress's evident purpose to draw a useable age division line, would read the phrases "under the age of eighteen years" in § 1432(a) and "has not attained his eighteenth birthday" in § 5031 to be equivalent. And that, in fact, is precisely what courts have done. See, e.g., United States v. Ramirez, 297 F.3d 185, 190-91 (2d Cir. 2002) (construing § 5031 to mean that the defendant must be " under twenty-one at the time the juvenile information charging the crime is filed" (emphasis added)); United States v. Pool, 937 F.2d 1528, 1532 (10th Cir. 1991) ("Federal law defines a juvenile as being under the age of 18. . . .").

The majority suggests that Congress's selection of the "birthday" language in § 5031 was a deliberate attempt to avoid the supposed ambiguity that exists in § 1432(a). Maj. Op. at 90. But the only ambiguity that Congress sought to avoid in the federal definition of a juvenile concerned the question whether "a person seventeen years of age or under," which is how the former definition read, see Act of June 16, 1938, ch. 486, 52 Stat. 764, included those persons between their seventeenth and eighteenth birthdays, or only those persons who had just turned seventeen years of age. Courts have taken and continue to take divergent views on this question: "Some courts have found that a clause specifying a particular age `or under' applies to the full year of the stated age. . . . Other courts have reached a contrary interpretation," that one past, for instance, his sixteenth birthday is no longer "a child of the age of sixteen years, or under." State v. Munoz, 22A Ariz. 146, 228 P.3d 138, 140 (2010) (internal quotation marks omitted); see also State v. Shabazz, 263 NJ.Super. 246, 622 A.2d 914, 918 (1993) (collecting cases). But this is ambiguity in what it means to be sixteen, seventeen, or some other age, not in what it means to be "under" a given age. Both sides of this debate agree that the "or under" language is not ambiguous: it refers to a person before he reaches his birthday and turns a year older. See, e.g., Munoz, 228 P.3d at 140 n. 3 ("Undoubtedly, Arizona's legislature could have expressed its intent for the cutoff age more precisely by saving `under fifteen' or `under sixteen.' Instead, the legislature used the language `fifteen years of age or under'. . . ."); id. at 142 ("We assume the [legislature] intended to change the intended cutoff age when it voted to approve the amendment to the bill from `under the age of fifteen' to `a child the age of fifteen years or under.' Had the legislature in-tended to protect only children less than fifteen years of age, it would have left the proposed wording intact, as the unmodified version clearly did not apply to any child who had reached his fifteenth birthday." (citation omitted)); State v. Carlson, 223 Neb. 874, 394 N.W.2d 669, 673 (1986) ("If `less than fourteen years of age' or `under fourteen years of age' had been used in [a Nebraska sexual assault statute], the protection of that statute would terminate when a child reached the 14th birthday.").

The historical notes to § 5031 indicate that the "birthday" language was adopted after U.S. District Judge Arthur J. Tuttle wrote to Congress stressing "the necessity of a definite fixing of the age of the juvenile." 18 U.S.C. § 5031 (Notes to 1948 Acts); see also Maj. Op. at 90. Judge Tuttle's letter reveals that the ambiguity in the former version of the juvenile definition resided in the phrase "seventeen years of age or under," which left uncertain the status of those persons who had passed their seventeenth birthday but not yet reached their eighteenth. "Some people will read [the phrase] and say that he ceases to be a juvenile just as soon as the hands of the clock pass midnight on the midnight which ends his seventeenth birthday. Others read it and say, `No, it is a year later. He continues to be a juvenile until midnight before his eighteenth birthday.'" Letter from Arthur J. Tuttle to Eugene J. Keogh, Chairman, Committee on Revision of the Laws, U.S. House of Representatives (June 24, 1944) (on file in Arthur J. Tuttle Papers, Bentley Historical Library, University of Michigan). There is no indication in Judge Tuttle's letter that he found ambiguity in the former version of the juvenile statute as it would apply to those "under" the age of seventeen.

The majority also seeks support for its construction of § 1432(a) in Matter of LM- and C-Y-C-, 4 I. N. Dec. 617 (B.I.A. 1952), a BIA decision never before cited by any federal court or even relied on by the BIA itself in any of its own subsequent cases. Maj. Op. at 91-92. The case involved a wholly different statutory scheme. In L — M-, the statute at issue provided that the foreign-born child of a U.S. citizen was a citizen himself at birth, but that citizenship was lost if the child "ha[d] not taken up a residence in the United States or its outlying possessions by the time he reache[d] the age of 16 years. . . ." L-M-, 4 I. N. Dec. at 618 (quoting Nationality Act of 1940, supra, § 201(g), 54 Stat, at 1139). Thus the question was whether the petitioners, who were citizens of the United States, were divested of that citizenship or whether they had complied with this statutory "return requirement." Granted, the BIA rejected what was perhaps the more natural reading of the statute in favor of a reading that comported with Congress's apparent intent that the statute be applied only to those who "by their own acts, or inaction, show that their real attachment is to the foreign country [in which they previously had been living] and not to the United States." Id., at 619. Thus the petitioners, who clearly evinced a continued "attachment" to the United States by seeking to return and arriving on their sixteenth birthdays, were not excluded. But this outcome was consistent with other BIA cases, construing the same or similar provisions, concluding that a citizen child would not be divested of citizenship even when he did not return but rather "when [he only] proceeded with due diligence to comply but his compliance with the physical presence requirement [was] prevented by official error or inaction." 7 Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, Immigration Law and Procedure § 93.02(6)(d) (Matthew Bender, Rev. Ed. 2010); see also id. nn. 148-50 (citing cases). Significantly, moreover, the BIA has never extended this reasoning to statutes governing the creation of citizenship. Indeed, L-M- took pains to stress that the statutory return requirement was a "condition[] subsequent and not [a] condition[] precedent" to citizenship, L-M- 4 I. N. Dec. at 618 (emphasis added), and that "a distinction should be made between the computation of the time within which a right may begin and the computation of the time within which a right shall end," id. at 620. There is a good reason here for drawing such a distinction: one who is divested of citizenship loses the privilege, but one who does not meet the qualifications for acquiring citizenship derivatively merely has to apply on his own behalf

The BIA did not, as the majority suggests, hold that "the method of arriving at the computation is to be in the interest of the person affected by it" when considering citizenship claims. Maj. Op. at 91-92 (quoting L-M-, 4 I. N. Dec. at 620). The BIA made this statement only in describing the reasoning of a different case, In re Babjak, 211 F. 551 (W.D.Pa. 1914), which involved a question entirely different from the one presented here: when a statute required a citizenship petition to be filed "no[] more than 7 years" after the applicant "ha[d] made [a] declaration of intention," and the applicant filed his petition seven years to the day after his declaration, whether the court had jurisdiction to consider the petition. Babjak, 211 F. at 552.

To the extent the majority suggests we must defer to the BIA's interpretation of the statute at issue in L-M-, see Maj. Op. at 88 n. 2, it is incorrect. As explained, L-M- dealt with a different statute in a different context. Further, to the extent L-M- could be read to bear on the question before us, the BIA has clearly changed its view since 1952. See Matter of Baires-Larios, 24 I. N. Dec. 467, 468 (B.I.A. 2008) ("We agree with the respondent that she has met the requirements of section 321(a) of the Act if she came into her father's legal custody prior to reaching her 18th birthday. . . ."); 8 Gordon, Mailman, and Yale-Loehr, supra, § 98.03(3)(e) ("The administrative view is that in computing the child's age for derivative citizenship purposes under the applicable statute, the designated age of maturity will be attained at 12:01 A.M. on the applicable anniversary day of the child's birth." (citing INS Interpretations 320.2)). In any event, the Chevron deference question is, for me, ultimately not relevant because the language of § 1432(a) is sufficiently clear that Congress can be considered to have "directly spoken to the precise question at issue," Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Langhorne, 377 F.3d at 179, 181 — the "precise question" being what age a person must be to acquire citizenship derivatively.

The majority's remaining arguments in favor of its interpretation merit little discussion. Because we are interpreting a statute, this case does not involve the "legal fiction" that "a day is indivisible," Maj. Op. at 88, except to the extent that this "fiction" reflects our ordinary understanding of when a person is "over" or "under" a certain age. And we must presume, unless it has given us reason to think otherwise, that Congress intends the ordinary meaning of words when it uses those words in statutes. See, e. g., Mitsui Co. v. Am. Exp. Lines, Inc., 636 F.2d 807, 814 (2d Cir. 1981). Because it was also the rule at common law that the law will not recognize fractions of a day, see, e.g., Parker v. State, 61 Md.App. 35, 484 A.2d 1020, 1021-22 (1984), we must also presume that Congress legislated "against [the] background of [that] common-law principle[]," Samantar v. Yousuf, ____ U.S. ___ n. 13, 130 S.Ct. 2278, 2289 n. 13, 176 L.Ed.2d 1047 (2010) (internal quotation marks and alteration omitted). Nothing in the derivative citizenship statute rebuts these presumptions.

Finally, even if § 1432(a) contained an ambiguity — which it does not — the majority ignores the principle of statutory construction that "an ambiguous statute must be construed to avoid absurd results." Rotimi v. Holder, 577 F.3d 133, 142 (2d Cir. 2009) (per curiam) (quoting Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 160 (2d Cir. 2007)) (internal quotation marks omitted). The majority's reading of the text is not only implausible in and of itself but also leads to absurdity — for it would be clearly unreasonable to require courts to ascertain the precise minute and hour of relevant events when applying statutes that include age distinctions:

If we were to hold that a juvenile becomes an adult at the precise hour of his or her birth . . . not only would it be necessary for the state to prove the precise hour, minute, and second of the alleged offense, but the state would also have to prove the precise hour, minute, and second of the individual's birth. In addition, courts would be required to deal with other peripheral issues, such as different time zones across the United States, or even across the world, and the inconsistent use of daylight-savings time. While . . . these issues are not completely impossible to remedy, they seem unreasonable or absurd when compared to the practical and commonly practiced solution of treating a person as a year older at 12:01 a.m. local time on their birthday.

Yarger, 908 N.E.2d at 468-69. Yet again, if the statute here truly were susceptible to multiple meanings, as the majority thinks, the decision which to apply is perfectly clear.

* * *

Our power to grant citizenship is limited; it is "a specific function to be performed in strict compliance with the terms of an authorizing statute which says that `a person may be naturalized in the manner and under the conditions prescribed in this subchapter [including former § 1432(a)], and not otherwise.'" Pangilinan, 486 U.S. at 884, 108 S.Ct. 2210 (alterations omitted) (quoting 8 U.S.C. § 1421(d)). We may not circumvent this principle, as the majority does, by implausibly construing those clear and unambiguous statutory requirements. I respectfully dissent.