uscis brief to gilberto edwards (3rd cir. 11-20-12) citizenship case

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 DELERY United States Attorney Principle Deputy Assistant Attorney General VERONICA J. FINKELSTEIN JEFFREY S. ROBINS Assistant U.S. Attorney Assistant Director U.S. Attorney’s Office Office of Immigration Litigation 615 Chestnut Street, Suite 1250 Philadelphia, 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

Case: 12-3670 Document: 003111083937 Page: 1 Date Filed: 11/20/2012

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TABLE OF CONTENTS STATEMENT OF JURISDICTION .............................................................. 1 STATEMENT OF THE ISSUES ................................................................... 1 STATEMENT OF FACTS ............................................................................. 2 STATEMENT OF THE CASE ...................................................................... 7 RELATED CASES AND PROCEEDINGS .................................................. 8 STANDARD OF REVIEW ............................................................................ 8 SUMMARY OF THE ARGUMENT ............................................................. 9 ARGUMENT ................................................................................................ 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. ............................................................... 14

CONCLUSION ............................................................................................. 18


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TABLE OF AUTHORITIES

Federal Cases Abreu-Mejia v. Att’y Gen. of U.S.,

393 F. App’x 918 (3d Cir. 2010) ............................................................... 12 Biskupski v. Att’y Gen.,

503 F.3d 274 (3d Cir. 2007) ........................................................................ 4 Brissett v. Ashcroft,

363 F.3d 130 (2d Cir. 2004) ...................................................................... 17 Claver v. U.S. Att’y Gen.,

245 F. App’x 904 (11th Cir. 2007) ............................................................ 16 Delmore v. Brownell,

135 F. Supp. 470 (D.N.J. 1955) .................................................... 10, 11, 13 Delmore v. Brownell,

236 F.2d 598 (3d Cir. 1956) ................................................................ 11, 13 Fedorenko v. United States,

449 U.S. 490 (1981) ............................................................................ 12, 15 Forrester v. Att’y Gen. of U.S.,

403 F. App’x 744 (3d Cir. 2010) ............................................................... 16 Hudson United Bank v. LiTenda Mort. Corp.,

142 F.3d 151 (3d Cir. 1998) ...................................................................... 14 INS v. Pangilinan,

486 U.S. 875 (1988) .................................................................................. 12 Lawrence v. City of Philadelphia,

527 F.3d 299 (3d Cir. 2008) .................................................................. 8, 15 Miller v. Albright,

523 U.S. 420 (1998) ............................................................................ 10, 12


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Morgan v. Att’y Gen. of U.S.,

432 F.3d 226 (3d Cir. 2005) ................................................................ 16, 17 Spruill v. Gillis,

372 F.3d 218 (3d Cir. 2004) ...................................................................... 14 United States v. Breyer,

41 F.3d 884 (3d Cir. 1994) ........................................................................ 10 United States v. Edwards,

No. 1:00-cr-1334 (E.D.N.Y.) ...................................................................... 3 United States v. Edwards,

342 F.3d 168 (2d Cir. 2003) ........................................................................ 3 United States v. Wong Kim Ark,

169 U.S. 649 (1898) .................................................................................. 10

Federal Statutes 8 U.S.C. § 1432 ............................................................................................... 4 8 U.S.C. § 1432(a) .......................................................................... 4, 5, 16, 17 8 U.S.C. § 1432(a)(3) ......................................................................... 5, passim 8 U.S.C. § 1452(a) ........................................................................................ 10 8 U.S.C. § 1503 ....................................................................................... 1, 6, 8 8 U.S.C. § 1503(a) ........................................................................................ 10 28 U.S.C. § 1291 ............................................................................................. 1

Child Citizenship Act of 2000

Pub. L. No. 106-395, Stat. 1631 ..................................................................... 4


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Federal Regulations 8 C.F.R. § 103.3(a) ....................................................................................... 10 8 C.F.R. § 341.1 ............................................................................................ 10 8 C.F.R. § 341.6 ............................................................................................ 10


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STATEMENT OF JURISDICTION The district court exercised jurisdiction to review Plaintiff/Appellee

Gilberto 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 of

appeal under Federal Rule of Appellate Procedure 4(a)(1)(B) on September

20, 2012. App. p. 1. This Court has jurisdiction to review the district

court’s final decision under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES 1. Once a putative citizen presents a prima facie claim to United States

citizenship, the burden shifts to the Government to rebut such claim with

clear, unequivocal, and convincing evidence. Here, the district court shifted

the burden to the Government to rebut Edwards’ prima facie claim to

citizenship, but it stopped there. It did not consider Government’s primary

rebuttal evidence. Did the district court err by refusing to consider the

Government’s rebuttal evidence?

2. Edwards claims that he derived United States citizenship through his

mother’s naturalization alone because, at the time his mother naturalized, his

parents were “legally separated.” But when Edwards’ mother naturalized,

she was not “legally separated” from Edwards’ father: her certificate of


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naturalization indicates she was married and she did not divorce Edwards’

father until two years later. Did Edwards derive citizenship through his

mother’s naturalization?

STATEMENT OF FACTS

Gilberto Ernesto Edwards, a foreign-born, putative United States

citizen, immigrated to the United States as a teenager. App. p. 39. Edwards

was born in Panama in 1965. Id. At the time of his birth, his parents were

married. Id. In 1977, he immigrated to the United States as a lawful

permanent resident. Id.

On May 5, 1978, Edwards’ mother petitioned the New York Family

Court for financial support from Edwards’ father. App. p. 39-40. The

petition lists different addresses for Edwards’ parents. App. p. 40. The

family court granted the petition and entered a temporary (and later

permanent) order of support, requiring Edwards’ father to provide Edwards’

mother with financial support. Id.

Edwards’ parents then naturalized in the United States. Id. His

mother naturalized in 1982, when Edwards was seventeen. Id. Her

certificate of naturalization notes that, at the time she naturalized, she was

married. 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


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naturalization also notes that, at the time he naturalized, he was married.

App. p. 59. In 1985, the Family Court of New York entered a divorce

decree 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 certificate

and his parents’ naturalization certificates. Id. The Department of State

reviewed and returned these documents, and on December 16, 1991, the

Department of State issued Edwards a United States Passport with an

expiration date of December 15, 2001. App. p. 40, 66.

Edwards was then indicted and convicted of drug trafficking. See

generally United States v. Edwards, No. 1:00-cr-1334 (E.D.N.Y.). On

December 27, 2000, Edwards was indicted for importing cocaine. App. p.

40. Edwards went to trial, and in early 2001, a jury convicted him of

conspiring to import greater than five kilograms of cocaine into the United

States. See United States v. Edwards, 342 F.3d 168, 172 (2d Cir. 2003). He

was sentenced to 235 months imprisonment. Id.

After he was indicted, but before he was convicted, Edwards filed an

N-600 Application for Certificate of Citizenship with the legacy

Immigration and Naturalization Service (“INS”). App. p. 40, 81-83. He

applied for a certificate of citizenship again in 2008. App. p. 41, 85-91. In


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his second application, Edwards noted that he received a passport in “1995

or 1996,” though he did not attach a copy of his passport to his application.

App. p. 87.

United States Citizenship and Immigration Services (“USCIS”) 1

denied 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 from

his 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 to USCIS. 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 of 2000, Pub. L. No. 106-395, 114 Stat. 1631, effective February 27, 2001.


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8 U.S.C. § 1432(a) (1990). USCIS determined that Edwards did not derive

United States citizenship under section 1432(a)(3) because, at the time of his

mother’s naturalization, Edwards’ parents were not “legally separated.”

App. p. 95. Then USCIS determined that Edwards’ passport was not

evidence of citizenship because it was expired. Id. Edwards filed an

administrative appeal. App. p. 41.

The Administrative Appeals Office (“AAO”) affirmed in part and

remanded in part. App. p. 41, 98-101. It affirmed USCIS’s determination

that Edwards did not derive citizenship through his mother’s naturalization.

App. p. 99-100. But it remanded Edwards’ application to USCIS with

instructions to allow the Department of State to review Edwards’ passport

and 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 derive

citizenship through his mother’s naturalization. App. p. 103-107. Then

USCIS explained that, after allowing the State Department to review

Edwards’ passport, the State Department reported that it could not revoke or

invalidate an expired passport because an expired passport is already invalid.

App. p. 107. Edwards again appealed. App. p. 41. This time the AAO


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affirmed. App. p. 41, 111-113. Edwards then sought judicial review of his

claim to United States citizenship.3 App. p. 15.

After cross-motions for summary judgment, the district court declared

Edwards a United States citizen. App. p. 6-14. The district court

determined that, at a minimum, Edwards’ expired passport constituted a

prima facie showing of United States citizenship. App. p. 10-12. Based on

this finding, the district court shifted the burden to the government to rebut

Edwards’ prima facie showing by clear, unequivocal, and convincing

evidence. Id. Without analysis, the district court determined that the

Government had failed to carry this burden. App. p. 12-13. The district

court then declared Edwards a citizen. Id.

In a lengthy footnote, the district court analyzed Edwards’ claim to

derivative citizenship. App. p. 13. The district court first explained

Edwards’ claim and the Government’s contrary argument. Id. But the

district court decided it need not reach this argument because it had already 3 Edwards originally filed his complaint as a mandamus action seeking an order 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 AAO appeal to be completed, and on October 11, 2011, Edwards filed an amended complaint 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 set of undisputed facts and proceed with cross-motions for summary judgment on Edwards’ claim under 8 U.S.C. § 1503. App. p. 18-19. Edwards withdrew all other collateral claims in his amended complaint. App. p. 19.


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held that “Edwards’ passport is sufficient to establish by a preponderance of

evidence that he is a U.S. citizen.” Id. Nevertheless the district court cited

the relevant authority and opined that “it is unlikely that Edwards could

succeed with” his claim to derivative citizenship. Id. This appeal followed.

STATEMENT OF THE CASE Edwards filed N-600 Applications for Certificates of Citizenship in

2001 and 2008 with INS and USCIS, respectively. App. p. 40-41, 81-91.

USCIS denied both applications in 2009, reasoning that Edwards did not

derive United States citizenship through his mother’s naturalization and his

expired passport did not constitute evidence of citizenship. App. p. 41, 93-

95. Edwards appealed. App. p. 41. The AAO affirmed USCIS’s decision

that Edwards did not derive United States citizenship, but it remanded the

case back to USCIS with instructions to allow the Department of State to

review and potentially revoke Edwards’ passport. App. p. 41, 98-104.

After two years, Edwards filed suit in the Eastern District of

Pennsylvania seeking an order to compel USCIS to render a remand

decision. App. p. 16. USCIS then denied Edwards’ application again. App.

p. 41, 103-108. USCIS decided again that Edwards did not derive United

States citizenship, and it noted that the State Department decided that,

because Edwards’ passport was expired, it could not revoke his passport.


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App. p. 103-108. Edwards appealed, and the AAO affirmed. App. p. 41,

111-113.

On October 11, 2011, Edwards filed an amended complaint seeking a

declaration of citizenship under 8 U.S.C. § 1503. App. p. 18, 23-38. The

parties filed undisputed facts and cross-motions for summary judgment.

App. p. 39-41, 114-127, 130-146. On July 26, 2012, the Court granted

Edwards’ motion for summary judgment and declared Edwards a United

States citizen. App. p. 6-14. The Government filed its notice of appeal on

September 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 of

summary judgment. Lawrence v. City of Philadelphia, 527 F.3d 299, 310

(3d Cir. 2008).


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SUMMARY OF THE ARGUMENT This Court should vacate the district court’s holding that the

Government did not carry its rebuttal burden and vacate the district court’s

declaration of citizenship because the district court failed to consider the

Government’s rebuttal evidence that Edwards did not derive United States

citizenship. Under 8 U.S.C. § 1503, once a putative citizen makes a prima

facie claim to United States citizenship, the burden shifts to the government

to rebut such claim. Here, the district court shifted the burden to the

Government, but it did not consider its rebuttal evidence. And this error was

harmful because it led to the court to declare Edwards a United States citizen

without 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 States

citizen because he did not derive United States citizenship through his

mother’s naturalization. Under the relevant law, Edwards could only derive

United States citizenship through his mother’s naturalization if his parents

were legally separated. However, at the time his mother naturalized,

Edwards’ parents were not legally separated. Because this is a purely legal

question based on undisputed facts, this Court can and should decide this

issue in the first instance on appeal.


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ARGUMENT

I. 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) the

Government’s rebuttal evidence that Edwards is not a United States citizen.

A putative, derivative citizen4 — such as Edwards — may apply to USCIS

for a Certificate of Citizenship. See 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. If

denied, 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 a

declaration of citizenship in a district court under 8 U.S.C. § 1503(a). 8

U.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 of

United States citizenship. Id. Such suit is not limited to review of the

administrative decision or record; rather, it is a trial de novo. See Delmore v.

4 United States citizenship is acquired exclusively through birth and naturalization. Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). Though the Fourteenth Amendment grants citizenship to “all persons born . . . in the United States . . . subject to the jurisdiction thereof,” persons born outside of the United 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 States v. Breyer, 41 F.3d 884, 891-93 (3d Cir. 1994).


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Brownell, 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 to

that which would “sustain a judgment of denaturalization.” Delmore II, 236

F.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 not

derive citizenship through his mother’s naturalization. The Government

argued below that under applicable law — 8 U.S.C. § 1432(a)(3) (1990) —

Edwards did not derive United States citizenship through his mother’s

naturalization because, at the time she naturalized, she was not legally

separated from Edwards’ father. App. p. 40, 57, 137-39. The Government

affirmatively 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 his

citizenship through his mother’s naturalization because his parents were not

legally separated.”). But the district court did not consider it as rebuttal


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evidence. Id. In fact, the district court withheld judgment on this issue

altogether. Id. The district court failed to consider the Government’s

rebuttal evidence, and therefore, the district erred.

Further, this error is harmful because, given the nature of the

Government’s rebuttal evidence, the district court’s declaration of

citizenship is constitutionally suspect. “Once it has been determined that a

person does not qualify for citizenship . . . the district court has no discretion

to ignore the defect and grant citizenship.” Fedorenko v. United States, 449

U.S. 490, 517 (1981) (internal citation and quotation marks omitted). This

proscription emanates from Congress’s exclusive authority to establish a

uniform rule of naturalization. See Miller v. Albright, 523 U.S. 420, 456

(1998) (Scalia, J., concurring). “[W]here an alien does not meet the

statutory requirements for citizenship, a court does not have authority to

confer citizenship through equitable means.” Abreu-Mejia v. Att’y Gen. of

U.S., 393 F. App’x 918, 920 (3d Cir. 2010) (citing INS v. Pangilinan, 486

U.S. 875, 885 (1988)).

Here, the Government’s rebuttal to Edwards’ prima facie claim

consisted of its legal argument (based on undisputed facts) that Edwards did

not satisfy the terms of 8 U.S.C. § 1432(a)(3) and, therefore, did not derive

citizenship through his mother’s naturalization. App. p. 137-39. Though the


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district court did not consider this argument in its decision making, it did

note 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 a

United States citizen. Id. It appears, therefore, that the district court granted

Edwards citizenship in spite of his failure to satisfy Congress’s terms of

acquiring citizenship. Had the district court considered and rejected the

Government’s rebuttal evidence, this issue would have been avoided. But it

did not. And as a result, its declaration of citizenship is constitutionally

suspect.

The district court did not complete the burden shifting analysis under

Delmore I and Delmore II because it did not consider the Government’s

rebuttal evidence. As a result, the district court erred by holding that the

Government did not meet its burden of proof. This Court should, therefore,

vacate the district court’s holding that the Government did not carry its

burden and vacate the declaration of citizenship.


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II. 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 the

Government carried its burden to rebut Edwards’ prima facie claim to

citizenship by clear, unequivocal, and convincing evidence because the

district court failed to reach a pure question of law based on undisputed

facts. “When a district court has failed to reach a question below that

becomes critical when reviewed on appeal, an appellate court may

sometimes resolve the issue on appeal rather than remand to the district

court.” Hudson United Bank v. LiTenda Mort. Corp., 142 F.3d 151, 159 (3d

Cir. 1998). It is appropriate for an appellate court to rule in the first instance

where: the factual record is developed, the question to be decided is purely

legal, the appellate court is exercising plenary review, and resolution of the

issue 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 the

Government carried its burden to rebut Edwards’ prima facie claim to

United States citizenship. First, the parties have already agreed to a set of

undisputed 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


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evidence that Edwards is not a United States citizen because he did not

derive citizenship through his mother’s naturalization. Third, this Court’s

review of the district court’s decision on summary judgment is plenary. See

Lawrence 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 Fedorenko

v. United States, 449 U.S. 490, 517 (1981) (“Once it has been determined

that a person does not qualify for citizenship . . . the district court has no

discretion to ignore the defect and grant citizenship.”). Therefore, this Court

should determine in the first instance whether the Government proved by

clear, unequivocal, and convincing evidence that Edwards is not a United

States citizen because he did not derive citizenship through his mother’s

naturalization.

Based on the undisputed facts, Edwards is not a United States citizen

because he did not derive United States citizenship through his mother’s

naturalization. Here, Edwards alleges only that he derived citizenship under

1432(a)(3) through the naturalization of his mother who was his legal

custodian and who was, under the law of New York, legally separated from


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his father.5 App. p. 124-26. The only issue in dispute here is whether

Edwards’ parents were legally separated.

Though courts of appeals disagree about what is necessary to

demonstrate “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 upon

a formal governmental action, such as a decree issued by a court of

competent jurisdiction that, under the laws of a state or nation having

jurisdiction 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 legally

separated from Edwards’ father. Edwards’ mother’s naturalization

certificate avers that she was married at the time she naturalized, and the

New York Family Court entered a final divorce decree for Edwards’ parents

nearly three years after Edwards’ mother naturalized. App. p. 57, 61-62.

Further, the New York Family Court’s 1978 support orders did not alter

Edwards’ parents’ marital relationship; rather, such orders enforced a marital 5 Edwards does not argue that his parents were legally separated under Panamanian law. App. p. 124-26.


17

duty. 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 a

legal separation. 432 F.3d at 234.

Edwards, however, argues that, because the New York Family Court

was on notice that Edwards’ parents were living at different addresses when

it 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 enforce

marital obligations. Brissett, 363 F.3d at 134 (“The support order reaffirmed

[the husband’s] marital duty to provide support to his family, but did not

alter the relationship or rights of the parties in any significant way.”).

Second, Morgan requires formal governmental action to establish a legal

separation, not simply a passive recognition of the fact of separation. 432

F.3d at 234. Finally, section 1432(a) requires more than an informal or

factual separation; it requires “legal” separation. Id.

For these reasons, Edwards did not derive United States citizenship

through his mother’s naturalization. Because Edwards never derived United

States citizenship, the Government has presented sufficient evidence to rebut

Edwards’ prima facie claim to citizenship by clear, unequivocal, and


18

convincing evidence. This Court should, therefore, vacate the district

court’s holding that the Government did not carry its burden, vacate the

district court’s declaratory judgment, hold that the Government has proven

by clear, unequivocal, and convincing evidence that Edwards is not a United

States citizen, and dismiss this case with prejudice.

In the alternative, this Court should vacate the district court’s

declaratory judgment and its decision that the Government did not carry its

rebuttal burden, and remand this case to the district court with instructions to

consider 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’s


rebuttal burden, and it should affirmatively hold that the Government

rebutted Edwards’ prima facie claim to United States citizenship by clear,

unequivocal, and convincing evidence and dismiss Edwards’ amended

complaint with prejudice.

Or in the alternative, this Court should vacate the district court’s


rebuttal burden, and this Court should remand this case to the district court


19

with instructions to consider whether the Government’s argument constitutes

clear, unequivocal, and convincing evidence that Edwards is not a United

States citizen.

Dated: November 20, 2012 Respectfully submitted, ZANE DAVID MEMEGER STUART F. DELERY U.S. Attorney Principle Deputy Assistant Attorney General VERONICA J. FINKELSTEIN JEFFREY S. ROBINS Assistant U.S. Attorney Assistant Director U.S. Attorney’s Office Office of Immigration Litigation 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 s/Bradley B. Banias P: (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: [email protected] Attorneys for Defendants


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CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned hereby

certifies that the attached brief of Appellees complies with the typeface, type

styles, 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 Roman

14-point typeface and contains 4,159 words of text, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief was

prepared using Microsoft Word 2010 in fourteen point “Times New Roman”

font. The text of the electronic brief is identical to the text in the paper

copies filed with the Court. The virus detection program, Microsoft

Forefront Client Security version 1.5.1972.0, has been run on the file and no

viruses were detected.

s/Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice Dated: November 20, 2012


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 20, 2012, I electronically

filed the foregoing document with the Clerk of the Court using CM/ECF.

Also, on November 20, 2012, I sent a paper copy of Appellants’ Opening

Brief and Appendices to Plaintiff’s counsel at the address below via United

States Postal Service mail in an envelope with pre-paid postage:

Joe Hohenstein Orlow, Kaplan & Hohenstein 620 Chestnut Street, Suite 656 Philadelphia, PA 19106-0000 s/ Bradley B. Banias BRADLEY B. BANIAS Trial Attorney U.S. Department of Justice


uscis brief to gilberto edwards (3rd cir. 11-20-12) citizenship case

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united states court

aunited states citizen

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gilberto ernesto edwards

statement of facts