16‐3480‐ag Khalid v. Sessions 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6 August Term, 2017 7 No. 16‐3480‐ag 8 ______________________ 9 10 MOHAMMED HASSAN FAIZAN KHALID, 11 Petitioner, 12 13 v. 14 15 JEFFERSON B. SESSIONS III, United States Attorney General, 16 Respondent.* 17 18 19 ARGUED: JANUARY 11, 2018 20 DECIDED: SEPTEMBER 13, 2018 21 22 23 Before: JACOBS, HALL, and DRONEY, Circuit Judges 24 25 Petitioner Mohammed Hassan Faizan Khalid petitions for 26 review of a September 14, 2016, decision of the Board of Immigration 27 Appeals (BIA) affirming an immigration judge’s (IJ) order of removal. 28 The Department of Homeland Security instituted removal The Clerk of Court is directed to amend the caption as set forth above. * 1 proceedings against Khalid after he was convicted of conspiring to 2 provide material support for terrorism in violation of 18 U.S.C. § 3 2339A. Khalid moved to terminate his removal proceedings, 4 contending that he derivatively acquired citizenship from his U.S. 5 citizen father. At the time Khalid’s father became a U.S. citizen, Khalid 6 had recently entered federal pretrial juvenile detention for terrorism‐ 7 related charges, and remained there for the short time until his 8 eighteenth birthday. As a result, the IJ and BIA concluded that Khalid 9 was not in the “physical custody” of his U.S. citizen parent before his 10 eighteenth birthday, as required by the applicable derivative 11 naturalization statute, 8 U.S.C. § 1431(a). We hold that the short, 12 temporary physical separation caused by Khalid’s time in federal 13 pretrial juvenile detention did not strip Khalid’s father of his 14 “physical custody” of Khalid as that term is used in 8 U.S.C. § 1431(a), 15 and that consequently, Khalid is a U.S. citizen. Accordingly, we 16 GRANT the petition for review, VACATE the BIA’s decision, and 17 REMAND with instructions to terminate Khalid’s removal 18 proceedings. 19 20 Judge Jacobs, Circuit Judge, with whom Judge Hall joins, 21 concurs in a separate opinion. 22 23 24 WAYNE SACHS, Sachs Law Group, 25 LLC, Philadelphia, PA, for Petitioner. 26 27 PAUL F. STONE, Senior Counsel for 28 National Security, Office of 29 Immigration Litigation (Chad A. 30 Readler, Acting Assistant Attorney 31 General, Civil Division, Ethan B. 32 Kanter, Deputy Chief, National 2 1 Security Unit, Office of Immigration 2 Litigation, on the brief), U.S. 3 Department of Justice, Washington, 4 D.C., for Respondent. 5 Andrew Wachtenheim, Immigrant 6 Defense Project, New York, NY, for 7 Amici Curiae Center for Family 8 Representation, Her Justice, 9 Sanctuary for Families, The Door’s 10 Legal Services Center, Columbia Law 11 School Immigrants’ Rights Clinic, 12 New York University School of Law, 13 Immigrant Rights Clinic, Kathryn O. 14 Greenberg Immigration Justice Clinic 15 at Benjamin N. Cardozo School of 16 Law, Brooklyn Defender Services, 17 Monroe County Public Defender’s 18 Office, Neighborhood Defender 19 Service of Harlem, New York County 20 Defender Services, The Bronx 21 ...
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