Second Circuit Rules that the Temporary Physical Separation of a Minor Child Held in Pretrial Juvenile Detention Does Not Strip Parent of “Physical Custody” for Purposes of Determining Child’s Derivative Citizenship

Case Name: Khalid v. Sessions – Second Circuit

Date of Opinion: September 13, 2018

Opinion By: Judge Droney

Concurrence By: Judge Jacobs (joined by Judge Hall)


Mohammed Hassan Aizan Khalid was a 17-year-old legal permanent resident living with his parents in the United States when he was arrested and then detained on terrorism-related charges. Khalid had been using the internet for several years to attempt to assist extremists in the United States and abroad, including by translating jihadist videos from Urdu into English and then posting the videos online.

During Khalid’s juvenile pretrial detention but prior to his conviction (and prior to his eighteenth birthday), his father became a U.S. citizen. Khalid later pleaded guilty to the charges and then extensively cooperated with the federal government. Because of his cooperation, he was sentenced to a reduced term of five years’ imprisonment. After Khalid served his sentence, the Department of Homeland Security (DHS) initiated removal proceedings against him based upon his conviction. Khalid moved to dismiss the proceedings on the ground that he had acquired citizenship through his father.

The Immigration Judge and the Board of Immigration Appeals concluded that Khalid was not in the actual custody of his father between the time the father obtained U.S. citizenship and Khalid’s eighteenth birthday, and that Khalid was therefore not a citizen. The Second Circuit, however, vacated the BIA’s decision. The court explained that because Khalid’s time in federal juvenile detention was a short, temporary physical separation occurring prior to his conviction, it did not strip Khalid’s father of his “physical custody” of Khalid under the derivative naturalization provisions of the Immigration and Nationality Act (INA). The INA provides that a child under the age of eighteen who is a legal permanent resident of the United States acquires citizenship when the child’s parent becomes a U.S. citizen if the child resides in the United States in the “legal and physical custody” of the citizen parent. The court concluded that this standard had been met, that Khalid was a United States citizen, and that his removal proceedings must therefore be terminated.

Judge Jacobs wrote a separate concurrence, joined by Judge Hall, to emphasize that although he thought this was the correct legal result, he could not “congratulate Khalid on his American citizenship,” given his terrorism-related activities, and that the holding of the case was “surprising” and “does not lend itself to expansion.”

To read the full opinion, please visit:

Summary Prepared By: Amanda Brody

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