Category: Immigration

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)

Summary:

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. Continue reading