Sunday, December 07, 2008

Who’s Your Daddy?

United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born. After that, he was transferred to the Ready Reserves; he performed no further duty or services for the army, and received no pay or other form of government compensation. Although the army had the right to recall him to active duty, it never did so, and he was discharged in 1972.

Connolly legally entered the United States in 1993, but was deported in 1998 after a drug conviction, without asserting a claim to U.S. citizenship. He reentered illegally sometime after January 2002, and in 2005 was charged with illegal reentry. He defended the case both in the district court and on appeal by arguing that under 8 U.S.C. § 1403, he was a U.S. citizen.

The circuit disagreed. Section 1403 grants citizenship to anyone born in Panama on or after February 26, 1904, “whose father or mother or both at the time of the birth of such person” was a U.S. citizen “employed by the Government of the United States.”

Connolly’s case presented two questions. The first was whether his father was his “father” under the statute, since Connolly was born out of wedlock. In resolving this against Connolly, the district court had relied on an obscure interpretation letter ostensibly issued by the INS in sometime in 2001 that provided that the term “father” in this statute excluded the father of a child born out of wedlock unless the child had been legitimated. The district court gave this letter Chevron deference, and accordingly found that Connolly’s father was not, in fact, his “father.”

The circuit was not convinced. First, the letter was of dubious provenance, existing only as a Westlaw citation, with no “date or any other publication information that would help to identify how it came to exist.” Moreover, Chevron deference is only warranted where Congress has not spoken clearly on the issue. But here it has. The statute uses the term “father” without modification, restriction or exception, and the ordinary meaning of “father” is a “male parent.” Nor did the absence of statutory language distinguishing children on the basis of legitimacy create an ambiguity. When Congress has wanted to distinguish fathers of children born out of wedlock in title 8, it has done so. The court was also skeptical of INS letter itself: its lack of “thoroughness”; its poor “reasoning”; and the “limited relevance” of its sources. Finally, the court noted that a “more recent” pronouncement by the Department of Justice reached the contrary conclusion.”

The court stopped short of actually holding on the issue, however, because it held that Connolly could not establish that his father was “employed by the Government of the United States” when Connolly was born, in light of the fact that the father had been separated from active military duty eighteen days before Connolly’s birth. The plain meaning of “employ” is to “use or engage the services of” or “to provide with a job that pays wages or a salary.” In addition, when Congress does not provide a definition of the term “employee,” courts must assume that it had in mind “the conventional master-servant relationship” under common law. Under this test, the father was not “employed” after his separation from active duty. After leaving Panama, he returned to the job he had before being drafted; he did not participate in training, get paid a salary or receive another compensation. While army reservists serve a “necessary and valuable purpose,” this does not “constitute an employment relationship under the ordinary meaning of the statutory language.”



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