FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MONSSEF CHENEAU, No. 15-70636 Petitioner, Agency No. v. A077-279-939 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted En Banc March 22, 2021* San Francisco, California Filed May 13, 2021 Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Richard A. Paez, Morgan Christen, Mark J. Bennett, Eric D. Miller, Daniel A. Bress, Danielle J. Hunsaker, Patrick J. Bumatay, and Lawrence J. VanDyke, Circuit Judges. Opinion by Chief Judge Thomas; Dissent by Judge Bress * The en banc court unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 CHENEAU V. GARLAND SUMMARY** Immigration Remanding to the three-judge panel that previously denied Monssef Cheneau’s petition for review of a decision of the Board of Immigration Appeals, the en banc court held that the second clause of the derivative citizenship statute set out at former 8 U.S.C. § 1432(a)(5) does not require that the child have been granted lawful permanent residency prior to the age of eighteen in order to derive citizenship from a parent who naturalized, but the child must have demonstrated an objective official manifestation of permanent residence. Former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000) provides two different pathways to child of a naturalized parent to derive U.S. citizenship: 1) a child “residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent” is eligible; and 2) a child is eligible who “thereafter begins to reside permanently in the United States while under the age of eighteen years.” Cheneau entered the United states lawfully at age thirteen under a non-immigrant student visa. His mother naturalized in 1999, he applied for adjustment of status to lawful permanent resident at age fifteen in 2000, and was granted adjustment of status in 2003, after he turned eighteen. After theft convictions, removal proceedings were initiated, and Cheneau moved to terminate, asserting a claim of derivative ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHENEAU V. GARLAND 3 citizenship. The three-judge panel in this case held that it was required to hold that Cheneau was not a derivative citizen under either pathway because this court, in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), had held that both pathways required the child to have lawful permanent resident status. Reconsidering Romero-Ruiz in the present context, the en banc court concluded that Congress did not intend to require lawful permanent residency for the second pathway. First, the en banc court observed that Congress chose to use two different terms in the statute, creating a presumption that the terms have different meanings. Second, the en banc court explained that the two terms have different meanings in the Immigration and Nationality Act (“INA”). …
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