ZADVYDAS v. DAVIS et al. Together with No. 00—38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States Court of Appeals for the Ninth Circuit. (06/28/01)

• HTML version The central issue in both cases, which the Court consolidated for review, is the government's power to detain a deportable alien. The statute before the court requires a 90-day period of confinement for immigrants subject to a "final removal order," after which the government "may" continue the detention.

After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release, subject to administrative review.

The 5-to-4 decision rejected the government's view, as argued by both the Clinton and Bush administrations, that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.

Justice Stephen G. Breyer's majority opinion said that because interpreting the law in that way would present a "serious constitutional threat" under the Fifth Amendment's guarantee of due process, the court would construe the law to permit only "reasonable" detention. Justice Breyer said that after six months of detention, if deportation did not seem likely in the "reasonably foreseeable future," the government would have to come up with special reasons for keeping someone in custody.

Held:
   1. Section 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to post-removal-period detention. Statutory changes in the immigration law left habeas untouched as the basic method for obtaining review of continued custody after a deportation order becomes final, and none of the statutory provisions limiting judicial review of removal decisions applies here. Pp. 6—8.

 2. The post-removal-period detention statute, read in light of the Constitution’s demands, implicitly limits an alien’s detention to a period reasonably necessary to bring about that alien’s removal from the United States, and does not permit indefinite detention. Pp. 8—19.

(a) A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual’s liberty interest. The instant proceedings are civil and assumed to be non punitive, and the Government proffers no sufficiently strong justification for indefinite civil detention under this statute. The first justification–preventing flight–is weak or nonexistent where removal seems a remote possibility. Preventive detention based on the second justification–protecting the community–has been upheld only when limited to specially dangerous individuals and subject to strong procedural protections. When preventive detention is potentially indefinite, this dangerousness rationale must also be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. The civil confinement here is potentially permanent, and once the flight risk justification evaporates, the only special circumstance is the alien’s removable status, which bears no relation to dangerousness. Moreover, the sole procedural protections here are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (according to the Government) significant later judicial review. The Constitution may well preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. Pp. 8—12.

 (b) Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206–in which an alien was indefinitely detained as he attempted to reenter the country–does not support the Government’s argument that alien status itself can justify indefinite detention. Once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. Nor do cases holding that, because Congress has plenary power to create immigration law, the Judicial Branch must defer to Executive and Legislative Branch decision making in that area help the Government, because that power is subject to constitutional limits. Finally, the aliens’ liberty interest is not diminished by their lack of a legal right to live at large, for the choice at issue here is between imprisonment and supervision under release conditions that may not be violated and their liberty interest is strong enough to raise a serious constitutional problem with indefinite detention. Pp. 12—16.

(c) Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect. But this Court finds no clear indication of such intent. The statute’s use of “may” is ambiguous and does not necessarily suggest unlimited discretion. Similar related statutes requiring detention of criminal aliens during removal proceedings and the removal period do not show that Congress authorized indefinite detention here. Finally, nothing in the statute’s legislative history clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Pp. 16—19.

 3. The application of the “reasonable time” limitation is subject to federal-court review. The basic federal habeas statute grants the federal courts authority to determine whether post-removal-period detention is pursuant to statutory authority. In answering that question, the court must ask whether the detention exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute’s purpose of assuring the alien’s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized. If it is foreseeable, the court should consider the risk of the alien’s committing further crimes as a factor potentially justifying continued confinement. Without abdicating their responsibility to review the detention’s lawfulness, the courts can take appropriate account of such matters as the Executive Branch’s greater immigration-related expertise, the Immigration and Naturalization Service’s administrative needs and concerns, and the Nation’s need to speak with one voice on immigration. In order to limit the occasions when courts will need to make the difficult judgments called for by the recognition of this necessary Executive leeway, it is practically necessary to recognize a presumptively reasonable period of detention. It is unlikely that Congress believed that all reasonably foreseeable removals could be accomplished in 90 days, but there is reason to believe that it doubted the constitutionality of more than six months’ detention. Thus, for the sake of uniform administration in the federal courts, six months is the appropriate period. After the 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence sufficient to rebut that showing. Pp. 19—22.

Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which Scalia and Thomas, JJ., joined as to Part I.
------------------------------------------------------------------------

INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers (1) Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

• html version

Before the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 212(c) of the Immigration and Nationality Act of 1952 was interpreted to give the Attorney General broad discretion to waive deportation of resident aliens. As relevant here, the large class of aliens depending on 212(c) relief was reduced in 1996 by 401 of AEDPA, which identified a broad set of offenses for which convictions would preclude such relief; and by IIRIRA, which repealed 212(c) and replaced it with a new section excluding from the class anyone convicted of an aggravated felony, 8 U.S.C. 1229b(a)(3). Respondent St. Cyr, a lawful permanent United States resident, pleaded guilty to a criminal charge that made him deportable. He would have been eligible for a waiver of deportation under the immigration law in effect when he was convicted, but his removal proceedings were commenced after AEDPAs and IIRIRAs effective dates. The Attorney General claims that those Acts withdrew his authority to grant St. Cyr a waiver. The Federal District Court accepted St. Cyrs habeas corpus application and agreed that the new restrictions do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed.

Held:

1. Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition.

a) To prevail on its claim that AEDPA and IIRIRA stripped federal courts of jurisdiction to decide a pure question of law, as in this case, petitioner Immigration and Naturalization Service (INS) must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction. Here, that plain statement rule draws additional reinforcement from other canons of statutory construction: First, when a statutory interpretation invokes the outer limits of Congress power, there must be a clear indication that Congress intended that result; and second, if an otherwise acceptable construction would raise serious constitutional problems and an alternative interpretation is fairly possible, the statute must be construed to avoid such problems.

b) Construing the amendments at issue to preclude court review of a pure question of law would give rise to substantial constitutional questions. The Constitutions Suspension Clause, which protects the privilege of the habeas corpus writ, unquestionably requires some judicial intervention in deportation cases. Heikkila v. Barber, 345 U.S. 229, 235. Even assuming that the Clause protects only the writ as it existed in 1789, substantial evidence supports St. Cyrs claim that pure questions of law could have been answered in 1789 by a common-law judge with power to issue the writ. Thus, a serious Suspension Clause issue would arise if the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute. The need to resolve such a serious and difficult constitutional question and the desirability of avoiding that necessity reinforce the reasons for requiring a clear and unambiguous statement of constitutional intent. Pp. 914.

(c) To conclude that the writ is no longer available in this context would also represent a marked departure from historical immigration law practice. The writ has always been available to review the legality of executive detention, see e.g., Felker v. Turpin, 518 U.S. 651, 663, and, until the 1952 Act, a habeas action was the sole means of challenging a deportation orders legality, see, e.g., Heikkila, 345 U.S., at 235. Habeas courts have answered questions of law in alien suits challenging Executive interpretations of immigration law and questions of law that arose in the discretionary relief context. Pp. 1417.

(d) Neither AEDPA 401(e) nor three IIRIRA provisions, 8 U.S.C. 1252(a)(1), (a)(2)(C), and (b)(9), express a clear and unambiguous statement of Congress intent to bar 28 U.S.C. 2241 petitions. None of these sections even mentions 2241. Section 401(e)s repeal of a subsection of the 1961 Act, which provided, inter alia, habeas relief for an alien in custody pursuant to a deportation order, is not sufficient to eliminate what the repealed section did not grantnamely, habeas jurisdiction pursuant to 2241. See Ex parte Yerger, 8 Wall. 85, 105106. The three IIRIRA provisions do not speak with sufficient clarity to bar habeas jurisdiction. They focus on judicial review or jurisdiction to review. In the immigration context, however, judicial review and habeas corpus have historically distinct meanings, with habeas courts playing a far narrower role. Pp. 1724.

2. Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Pp. 2436.

(a) A statutes language must require that it be applied retroactively. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208. The first step in the impermissible-retroactive-effect determination is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Martin v. Hadix, 527 U.S. 343, 352. Such clarity is not shown by the comprehensiveness of IIRIRAs revision of federal immigration law, see Landgraf v. USI Film Products, 511 U.S. 244, 260261, by the promulgation of IIRIRAs effective date, see id., at 257, or by IIRIRA 309(c)(1)s saving provision. Pp. 2430.

(b) The second step is to determine whether IIRIRA attaches new legal consequences to events completed before its enactment, a judgment informed and guided by considerations of fair notice, reasonable reliance, and settled expectations. Landgraf, 511 U. S., at 270. IIRIRAs elimination of 212(c) relief for people who entered into plea agreements expecting that they would be eligible for such relief clearly attaches a new disability to past transactions or considerations. Plea agreements involve a quid pro quo between a criminal defendant and the government, and there is little doubt that alien defendants considering whether to enter into such agreements are acutely aware of their convictions immigration consequences. The potential for unfairness to people like St. Cyr is significant and manifest. Now that prosecutors have received the benefit of plea agreements, facilitated by the aliens belief in their continued eligibility for 212(c) relief, it would be contrary to considerations of fair notice, reasonable reliance, and settled expectations to hold that IIRIRA deprives them of any possibility of such relief. The INS argument that application of deportation law can never have retroactive effect because deportation proceedings are inherently prospective is not particularly helpful in undertaking Landgrafs analysis, and the fact that deportation is not punishment for past crimes does not mean that the Court cannot consider an aliens reasonable reliance on the continued availability of discretionary relief from deportation when deciding the retroactive effect of eliminating such relief. That 212(c) relief is discretionary does not affect the propriety of this Courts conclusion, for there is a clear difference between facing possible deportation and facing certain deportation. Pp. 3036. 229 F.3d 406, affirmed.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. OConnor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C.J., and Thomas, J., joined, and in which OConnor, J., joined, as to Parts I and III.
---------------------------------------------------------------------------------------------------------

Search Bill Text for 107th Congress (2001-2002)

House Passes Age-Out Bill:

The House on June 6 unanimously passed H.R. 1209, the Child Status
Protection Act of 2001. The bill, introduced by Representatives George
Gekas (R-PA) and Sheila Jackson-Lee (D-TX), would protect the children
of U.S. citizens from aging-out during the process of applying for
permanent residency. The legislation would protect the children of U.S.
citizens by defining their eligibility for a visa based on their age on
the date that the immigrant visa petition was filed with INS. For
petitions that are converted to a petition for an unmarried child of a
U.S. citizen by virtue of the parents becoming naturalized citizens or
the minor child getting a divorce, eligibility for a visa will be based
on the date that the parents became citizens or on the date that the
divorce became final. States that such amendments shall apply
retroactively.

In the Senate, Senator Dianne Feinstein (D-CA) has introduced an age-out
protection bill with the same name. However, Senator Feinstein’s bill,
S. 672, does not limit its protections to the children of U.S. citizens.
In addition to providing the protections contained in H.R. 1209, Senator
Feinstein’s bill prevents the children of legal permanent residents,
refugees and asylees, diversity visa holders, and the children of
employment-based applicants from aging out during the long processing
delays.

S.995  Immigrant Fairness Restoration Act of 2001: Introduced by
Senators Edward Kennedy (D-MA), Bob Graham (D-FL), and 8 co-sponsors, S.
955 would provide comprehensive reform of the 1996 immigration laws,
including: the elimination of mandatory and indefinite detention;
eliminating the bars to admissibility for unlawful presence; restoring
waivers of certain grounds on inadmissibility established by the 1996
laws; and restoring due process, proportionality, judicial discretion,
and judicial review to immigration law.

S.778  245(i) Extension: Introduced by Senator Chuck Hagel (R-NE), with
6 original co-sponsors, S.778 would expand the class of beneficiaries
who may apply for adjustment of status under section 245(i) of the
Immigration and Nationality Act by extending the deadline for
classification petition and labor certification filings to April 30,
2002.

S.778  Child Status Protection Act: Introduced by Senator Dianne
Feinstein (D CA), S. 672 amends the Immigration and Nationality Act to
provide for the continued classification of certain aliens as children
in cases where the aliens "age out" while awaiting immigration
processing.

H.R. 1918  Student Adjustment Act of 2001: Introduced by Representatives
Chris Canon (R-UT) and Howard Berman (D-CA), H.R. 1918 amends the
Immigration and Nationality Act to cancel the removal, and adjust the
status of certain alien college-bound students who are long-term U.S.
residents, and amends the Illegal Immigration Reform and Immigrant
1Responsibility Act of 1996 to permit states to determine state
residency for higher education tuition.

Adjustment of Status/Family Unification

S.1265
Children's Adjustment, Relief, And Education (Care) Act Of 2001: Introduced by Senator Richard J. Durbin (D-IL) and eight co-sponsors, S.1265 would amend the Immigration and Nationality Act to require the attorney general to cancel the removal and adjust the status of certain aliens who were brought to the United States as children.

S.1167
Family Sponsor Immigration Act of 2001: Introduced by Senator Dianne Feinstein (D-CA), S.1167 amends the Immigration and Nationality Act to permit the substitution of an alternative close family sponsor in the case of the death of the person petitioning for an alien´s admission to the United States.

S. 672
Child Status Protection Act: Introduced by Senator Dianne Feinstein (D-CA), S. 672 amends the Immigration and Nationality Act to provide for the continued classification of certain aliens as children in cases where the aliens “age out” while awaiting immigration processing.

S. 562
Working Families Registry Act: Introduced by Senator Harry Reid (D-NE), S.562 amends the Immigration and Nationality Act to update the registry date from 1972 to 1986, thereby extending the admission date for permanent residence for certain aliens. The bill also adds one year extensions starting in Jan. 2002 through Jan. 2006 thereby bringing the registry date to 1991 in the year 2006.

H.R. 1892
Family Sponsor Immigration Act: Introduced by Representative Calvert (R-CA), H.R. 1892 amends the Immigration and Nationality Act to provide acceptance of an affidavit of support from another eligible sponsor if the original sponsor has died and the Attorney General has determined for humanitarian reasons that the original sponsor’s classification petition should not be revoked.

H.R. 1209
Child Status Protection Act of 2001: Introduced by Representative George Gekas (R PA), H.R.1209 amends the Immigration and Nationality Act to determine whether an alien is a child, for the family of U.S. citizens only, based on the age of the alien at the time that a petition to classify them is filed or at time that they became eligible for immediate relative status.
Asylum/Special Immigrants

S. 121
Unaccompanied Alien Child Protection Act of 2001:  Introduced by Senator Dianne Feinstein (D- CA), S.121 would establish an Office of Children's Services within the Department of Justice to coordinate and implement government actions involving unaccompanied alien children.

H.R. 1918
Student Adjustment Act of 2001: Introduced by Representatives Chris Canon (R-UT) and Howard Berman (D-CA), H.R. 1918 amends the Immigration and Nationality Act to cancel the removal, and adjust the status of certain alien college-bound students who are long-term U.S. residents, and amends the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to permit states to determine state residency for higher education tuition.

H.R. 1904
Unaccompanied Alien Child Protection Act of 2001: Introduced by Representatives Zoe Lofgren (D-CA) and Chris Cannon (R-UT), H.R. 1904 would establish an Office of Children's Services within the Department of Justice to coordinate and implement Government actions involving unaccompanied alien children, and for other purposes.

H.R. 1582
Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001: Introduced by Representative Luis Gutierrez (D-IL), H.R.1582 amends the Immigration and Nationality Act to adjust the status of certain long-staying alien children, to lower high school drop out rates for certain immigrant children, and to restore the right of State and local governments to decide whom they will admit to their State and local colleges and universities.

Due Process Reform

S.955
Immigrant Fairness Restoration Act of 2001: Introduced by Senators Edward Kennedy (D-MA), Bob Graham (D-FL), and 8 co-sponsors, S. 955 would provide comprehensive reform of the 1996 immigration laws, including: the elimination of mandatory and indefinite detention; eliminating the bars to admissibility for unlawful presence; restoring waivers of certain grounds on inadmissibility established by the 1996 laws; and restoring due process, proportionality, judicial discretion, and judicial review to immigration law.

H.R. 2113
Secret Evidence Rule: Introduced by Representative Rohrabacher (R-), H.R. 2113 to amend the Immigration and Nationality Act to ensure that no permanent resident alien or alien in the United States with an unexpired visa is removed or otherwise deprived of liberty, based on evidence that is kept secret from the alien.

H.R. 1452
Cancellation of Removal Reform Bill: Introduced by Representative Barney Frank (D-Mass), H.R. 1452 amends the Immigration and Nationality Act to expand the eligibility of certain long-term permanent resident aliens to seek cancellation of removal, and to reform some of the harsher provisions of IIRIRA.

H.R. 1266
Secret Evidence Repeal Act of 2001: Introduced by Representative David Bonior (D-MI), H.R. 1266 ensures that no alien is removed, denied a benefit under the Immigration and Nationality Act, or otherwise deprived of liberty, based on evidence that is kept secret from the alien.

H.R. 87
Keeping Families Together Act of 2001: Introduced by Representative Bob Filner (D-CA), H.R. 87 amends the Immigration and Nationality Act to restore certain provisions relating to the definition of aggravated felony and other provisions as they were before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Equity of Relief

S. 656
Liberians Adjustment: Introduced by Senator Jack Reed (D-RI), S. 656 provides for the adjustment of status of certain nationals of Liberia to that of lawful permanent residents.

H.R. 1806
Liberian Refugee Immigration Fairness Act of 2001: Introduced by Representative Patrick Kennedy (D-R.I), with 26 co-sponsors, H.R. 1806 provides for the adjustment of status of certain nationals of Liberia to that of lawful permanent residence.

H.R. 707
Central American and Haitian Adjustment Act of 1999: Introduced by Representative Christopher Smith (R-NJ), H.R. 707 amends the Nicaraguan Adjustment and Central American Relief Act to provide to certain nationals of El Salvador, Guatemala, Honduras, and Haiti an opportunity to apply for adjustment of status under that act.

H.R. 348
Central American and Haitian Adjustment Act of 1999: Introduced by Representative Luis Gutierrez (D-IL), H.R.348 amends the Nicaraguan Adjustment and Central American Relief Act to provide to certain nationals of El Salvador, Guatemala, Honduras, and Haiti an opportunity to apply for adjustment of status under that act.
Essential Workers

S.1149
ESSENTIAL WORKERS/CHEFS: Introduced by Senator Reid (D-NV), S.1149 amends the Immigration and Nationality Act to establish a new nonimmigrant category for chefs and individuals in related occupations.
INS Reorganization

H.R. 1562
Immigration Restructuring and Accountability Act of 2001: Introduced by Representative Sheila Jackson-Lee (D-TX). A bill to replace the Immigration and Naturalization Service with the Office of the Associate Attorney General for Immigration Affairs, the Bureau of Immigration Services, and the Bureau of Immigration Enforcement, and for other purposes.
Section 245(i)

S.778
245(i) Extension: Introduced by Senator Chuck Hagel (R-NE), with 6 original co-sponsors, S.778 would expand the class of beneficiaries who may apply for adjustment of status under section 245(i) of the Immigration and Nationality Act by extending the deadline for classification petition and labor certification filings to April 30, 2002.

H.R. 1885
Section 245(i) Extension Act of 2001: Introduced by Representative George Gekas (R-PA), with 3 original co-sponsors, H.R. 1885 would expand the class of beneficiaries who may apply for adjustment of status under section 245(i) of the Immigration and Nationality Act by extending the deadline for classification petition and labor certification filings.

H.R. 1713
245(i) Restoration: Introduced by Representative Luis Gutierrez (D-IL), with 14 original co-sponsors, H.R.1713 would amend the Immigration and Nationality Act to restore the scope of eligibility for adjustment of status under section 245(i) of that act to that in effect before November 1997.

H.R. 1615
245(i) Extension: Introduced by Representative Sheila Jackson-Lee (D-TX), H.R. 1615 would expand the class of beneficiaries who may apply for adjustment of status under section 245(i) of the Immigration and Nationality Act by extending the deadline for classification petition and labor certification filings from April 30, 2001 to April 30, 2002.

H.R. 1242
245(i) Extension: Introduced by Representative Peter King (R-NY), H.R. 1242 would expand the class of beneficiaries who may apply for adjustment of status under section 245(i) of the Immigration and Nationality Act by extending the deadline for classification petition and labor certification filings to October 31, 2001.

H.R. 1195
245(i) Extension: Introduced by Representative Charles Rangel (D-NY), H.R. 1195 expands the class of beneficiaries who may apply for adjustment of status under section 245(i) of the Immigration and Nationality Act by extending the deadline for classification petition and labor certification filings to April 30, 2002.

Restrictionist Bills

HJRES59
A Resolution Regarding United States Citizenship: Introduced by Representative Mark Foley (R-Fla.), HJRES59 would call for a joint resolution proposing an amendment to the Constitution of the United States to provide that no person born in the United States will be a United States citizen unless a parent is a United States citizen, is lawfully in the United States, or has a lawful immigration status at the time of the birth.

H.R. 190
Clarifies the Effect on the Citizenship of an Individual Born in the United States: Introduced by Representative Bob Stump (R-AZ), H.R. 190 declares that a person born in the U.S. to a mother who is a U.S. citizen, national or immigrant and is eligible to become or is a citizen or national of a country which either of his or her natural parents is a citizen or national, is not a U.S. citizen solely by virtue of being born in the U.S.